Tag Archives: clarification

NSA clarification

I have written that we really didn’t know what was going on at the NSA. Well, this week we got some clarification.

From Kevin Drum:

Today, in the latest release of classified NSA documents from Glenn Greenwald, we finally got a look at these minimization procedures. Here’s the nickel summary:

The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.

I have a feeling it must have killed Glenn to write that paragraph. But on paper, anyway, the minimization procedures really are pretty strict. If NSA discovers that it’s mistakenly collected domestic content, it’s required to cease the surveillance immediately and destroy the information it’s already collected. However, there are exceptions. They can:

Retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.

The Guardian has posted two classified documents online. The first one describes the procedure for determining whether a surveillance target is legitimate (i.e., a non-U.S. person located outside the country). The second one describes the minimization procedures in case of inadvertent targeting of a U.S. person. There are a few obvious things to say about them:

  • The determination document repeatedly emphasizes that NSA bases its decisions on the “totality of the circumstances.” There are quite a few safeguards listed to make sure that only foreigners are targeted, but in the end these are often judgment calls from analysts.
  • The minimization procedures are fairly strict, but they do allow retention and disseminationof domestic data—without a warrant—under quite a few circumstances. “Threat of harm” is pretty broad, as is “criminal activity.” The latter, in fact, seems like a loophole the size of a Mack truck. It suggests that NSA could have a significant incentive to “inadvertently” hoover up as much domestic information as possible so it can search for evidence of criminal activity to hand over to the FBI.
  • The oversight procedures are pretty thin. Analysts have quite a bit of discretion here.

It’s genuinely unclear how big a problem this stuff is. It’s plainly true that determining whether someone is a U.S. person is sometimes a judgment call, and it’s possible that mistakes are rare. What’s more, if collection of domestic content genuinely is inadvertent, and is only occasionally turned over to other agencies when there’s evidence of serious crime, we should all feel better about this. But we really have no way of knowing. That would require, say, an inspector general to gather this kind of information, and the IG has specifically declined to do this.

Also, note that the documents posted by the Guardian are from 2009. It’s quite possible that procedures have changed since then.

(Editor’s note – for me the take-home lesson is there is still a lot that we don’t know.)

Jindal is digging the hole deeper

I found a story on DK the night of Governor Bobby Jindal’s Republican response that seemed to suggest that Jindal wasn’t in New Orleans in the immediate aftermath of hurricane Katrina. The story was picked up by TPMPolitico’s Ben Smith noted the blog chatter and asked the Governor’s office for clarification. Governor Jindal’s office released this response:

It was in the days following the storm. Sheriff Lee was a hero who worked tirelessly to rescue those in danger, and he didn’t take kindly to bureaucrats getting in his way.

Really? Well, this clears up everything. We are sorry for… Wait a minuteWhat?  TPM has the rest of the story and the governor’s office does absolutely nothing to help the governor out of this trap.

From TPM:

Instead, they went back to Smith, now telling him, in Smith’s words, that Jindal “didn’t imply” on Tuesday that the story “took place during the heat of a fight to release rescue boats.” (Take 30 seconds to read Jindal’s actual words, and you’ll see that’s flatly untrue — but no matter.) Rather, Jindal spokeswoman Melissa Sellers told Smith, “It was days later .. Sheriff Lee was on the phone and the governor came down to visit him. It wasn’t that they were standing right down there with the boats.”

Smith added:

She said she thought Lee, who died in 2007, “was doing an interview” about the incident with the boats when the governor described him yelling into the phone.In other words, Jindal only heard from Lee later that this had happened. He didn’t actually see it happening and played no role in it himself. We posted a few hours ago, noting that Jindal’s office had admitted the story was false.

But then things got weirder: Jindal’s people went back for yet more.

Smith soon posted an update explaining that he had misunderstood Sellers earlier. According to Teepell, Smith now wrote, rescue efforts were in fact still underway when Jindal met with Lee. And Jindal overheard Lee yelling on the phone to justify a decision he had previously made, not giving an interview about the episode, as Sellers’ earlier version had had it.

In fact, that whole thing about Jindal overhearing Lee giving an interview? It’s now gone from Smith’s post (though, thanks to the dangers of syndication, it remains here) as if Jindal’s office never said it.

There’s more. Amazingly, Sellers then argued to Smith that there is no difference between Jindal’s original story as told Tuesday night, and the one her office finally settled on this afternoon. And even more amazingly, Smith added another update in which he transcribed that argument without comment, as if it were reasonable.

Then the capper: With Jindal’s office now satisfied with the third iteration of its story — a version that clearly acknowledged that the first version, told Tuesday night to millions, was false — Teepell went back to Smith with the following comment:

“This is liberal blogger B.S. The story is clear.”

And Smith, in yet another update, published it.

Good work all round!