Thursday, September 26, 2013

127.3 - Revelations of NSA spying: August

Revelations of NSA spying: August

Come August, we were told about a secretive unit of the Drug Enforcement Administration called the Special Operations Division, which apparently has access to the NSA's massive database of telephone records and is using it to launch criminal investigations of Americans - not "national security" cases, ordinary crimes - after which law enforcement agents who use the information "recreate" the investigative trail - that is, they lie about how such investigations actually got started in order to keep the involvement of the Special Operations Division secret.

Early in the month, journalists noted something that had been overlooked in a document uncovered back in June. Recall that under the 2008 amendments to FISA, the NSA could do "cross-border surveillance," that is, it could spy on US soil without warrants so long as the “target” was a noncitizen who was outside the US at the time of the spying.

In a set of rules for how the NSA will carry out the law, one rule, the only one marked "Top Secret," says that the agency “seeks to acquire communications about the target that are not to or from the target.” [My emphasis.] In other words, the NSA is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, it's also intercepting almost all the communications of Americans which either start or end outside the US and searching them - without warrants - for any that make reference to information that is about or linked to those foreigners. That's a far wider net than what had previously been admitted.

And, supposedly, it's all okay because those foreigners are still the ones being "targeted." Timothy Edgar, a former intelligence official in the Bush and Obama administrations, said “There is an ambiguity in the law about what it means to ‘target’ someone.”

In the scifi fantasy classic Hitchhiker's Guide to the Galaxy, Arthur Dent, upon being told he is "safe" in a cabin of one of the spaceships of the Vogon Constructor Fleet which has just destroyed the planet Earth, says "This is obviously some strange usage of the word 'safe' that I hadn't previously been aware of." We can all understand how he felt, as it appears that in the minds of the spooks, "target" joins "transparent," "collect," and "relevant" with its own strange usage we hadn't previously been aware of.

We also found out early in August that the NSA has a secret backdoor into its vast databases under a legal authority from the Obama administration enabling it to search for US citizens' email and phone calls without a warrant.

Under FISA, again, the NSA can target people for surveillance without a warrant if they are non-US citizens and outside the US at the time the data is collected. That applies even if the other end of that communication is a US citizen inside the US. The point here is that the NSA admits that information about purely domestic communications can be "inadvertently" gathered up at the same time and put in the databases - and this new rule, which dates from 2011, allows operatives to hunt for individual Americans' communications using their name or some other identifying information, even if they are inside the US and even if they are not actually targets for surveillance. As long as it's in the database, they can search for it, without a warrant, even if it shouldn't have been there in the first place.

So much for the claims from both Obama and senior spooks that the privacy of US citizens is protected.

Oh, but it is! It is! Because there are rules! And we know NSA agents would never break the rules!

Except that, um, they do. Rather frequently. In fact, it turned out in mid-August that since Congress granted the NSA its new powers in 2008, the agency has broken privacy rules or overstepped its legal authority thousands of times each year - and the NSA knew it.

And that figure is based on an internal agency audit which only includ incidents at NSA facilities in the Washington, DC area. According to three separate government officials, the number would be multiplied if it included other NSA operating units and regional collection centers.

Some of these violations were truly accidental, including improper surveillance as the result of a typographical error in an order - but many others were not, including violation of court orders and conducting programs without even informing the FISC, on top of which top officials decided they didn't even have to report some violations and took steps to hide others from the FISC and the Justice Department by removing details and substituting generic language - in other words, a coverup.

Other abuses and violations weren't social or political, they were personal. The NSA admitted in August that some of its analysts deliberately abused its surveillance systems to to spy on people in which they had romantic interests or a former spouse. The agency insists this is rare but it's common enough to have gained its own label. Just like spooks use the term "sigint" as shorthand for "signals intelligence," this is "LOVEint," for "love intelligence."

And, as NSA and its champions in and out of the Executive Branch hope you have forgotten, there was the news back in 2008 that NSA personnel routinely listened in on the intimate and innocent phone calls of Americans in Iraq, including government personnel, journalists, aid workers, and soldiers as they called back into the United States and then tell other analysts to pull up and listen to certain calls because they were "funny" or had "good phone sex."

At the same time, in August, the NSA, which would never break the rules, admitted that in each of the years 2008 to 2011, one of its surveillance programs had unlawfully gathered as many as 56,000 emails and other communications by Americans who were not suspected of any connection to terrorism. That revelation came as the result of a federal suit by the Electronic Frontier Foundation, which fought the government in court for over a year to get the related documents declassified.

August was also when we learned that the US's surveillance programs violate an international agreement between the US and the European Union meant to ensure cross-border data protection. We learned that when Germany demanded a new agreement with the US not to spy on one another after Germany's independent privacy watchdogs raised the alarm.

And it's not just European allies that are targeted: The NSA is also spying on the United Nations, having cracked the encryption code needed for the organization’s internal videoconferencing calls. Such surveillance of the UN is illegal under international law. The US, it turns out, isn't the only nation doing this - but that doesn't make it any less illegal.


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