A US Federal Court judge has ruled that the National Security Agency’s secret domestic wiretapping program of internal terrorist suspects, was illegal according to the New York Times. The activity violated the 1978 Foreign Intelligence Surveillance Act (FISA) which was put into place after the various inquiries into the activities of the FBI and NSA in the late 1960s and early 1970s. As I’ve said before, that’s hardly a surprise and don’t think this has got a whole lot to do with George W. Bush in particular. Intelligence services might claim to operate under laws but in reality their priorities are not bound by them.But there’s a kind of cycle of collective amnesia that goes on with these inquiries and rulings. This time, the NSA was basically doing almost exactly the same thing as in the earlier period. Some minor superficial changes will occur. People will forget about it. The NSA will carry on. Then in 20 years time, there will be something else that will reveal again the same kinds of activities. Cue collective shock again. And so on. It would take a lot more continual public oversight and openness for them to be held properly to account, and if they were, they’d be very different entities. But that’s not to say that they shouldn’t be held to account: the fact that most democratic nations have what amounts to a secret state within the state that may have very different priorities than the official government or the people should be profoundly worrying. Yet it seems to be such an enormous breach of the democratic ideal that it goes largely unnoticed.
“Christopher Soghoian, a PhD Candidate at Indiana University, has released the information on US wiretap/pen register information along with documents received through FOIA that are inquiring into the costs that telecommunications carriers demand for the two aforementioned services. He also has full recordings of sessions from (the closed door) ISS World: Intelligence Support Systems for Lawful Interception, Criminal Investigations and Intelligence Gathering. An executive summary of his draft thoughts are below, followed by a link to the full piece he’s written. He has made available his recordings and the responses to his FOIA requests to the public at large, all accessible at the link below.
Sprint Nextel provided law enforcement agencies with its customers’ (GPS) location information over 8 million times between September 2008 and October 2009. This massive disclosure of sensitive customer information was made possible due to the roll-out by Sprint of a new, special web portal for law enforcement officers.
The evidence documenting this surveillance program comes in the form of an audio recording of Sprint’s Manager of Electronic Surveillance, who described it during a panel discussion at awiretapping and interception industry conference, held in Washington DC in October of 2009.
It is unclear if Federal law enforcement agencies’ extensive collection of geolocation data should have been disclosed to Congress pursuant to a 1999 law that requires the publication of certain surveillance statistics — since the Department of Justice simply ignores the law, and has not provided the legally mandated reports to Congress since 2004.”
In one of those fortuitous instances of synchronicity, there are two stories today that illustrate some of both the commonalities and the differences between state surveillance practices and regulation in the UK and the USA.
In the UK, The Guardian has revealed that the Surveillance Commissioner (a separate office to the Information Commissioner) has been very critical behind the scenes, as the Lords Committee was in public, of the uses to which the Regulation of Investigatory Powers Act (2000) (RIPA) has been put, not this time by local government, but by national ministries like the Department for Environment, Food and Rural Affairs (DEFRA) and agencies, including Ofcom (the broaadcast and communications regulator) and the Charities Commission. DEFRA came in for a particular telling-off over its spying on fishermen. The chief commissioner, Sir Christopher Rose found generalised lax practice, a lack of proper justification for and proportionality in the used of RIPA, and little training or accountability. In short, RIPA is being used because the powers exist not because there is any pressing justification to use surveillance in this manner – the used of surveillance has expanded because it is available.
It is very interesting that The Guardian had to discover all this through Freedom of Information Act (FOIA) requests, and that the Surveillance Commissioner had not put all of this in the public domain as a matter of course. It highlights for me, once again, the clear difference in attitude and regulatory practice between him and the open, accountable, and active Information Commissioner’s Office (ICO). It confirms my view that we would be much better off if the Surveillance Commissioner’s work was absorbed into the ICO.
In the USA, it is to lawyers that people immediately turn if some bad practice is suspected on behalf of the government. The Los Angeles Times reports that on Friday, the US government lost the case it had been bringing to try to stop an Islamic charity based in Oregon from suing them over what they claim were illegal wiretapping operations targeted at them. The case stems from the Bush administration’s attempts to bypass what were already very weak regulations governing the surveillance of American citizens which were introduced in the Foreign Intelligence Surveillance Act (1978) (FISA) and recently amended in the Protect America Act (2007). Requests are supposed to go to the Foreign Intelligence Surveillance Court (FISC) which meets in secret and does not have to publish its rulings and so far as we know, has never turned down a request – so it is somewhat mystifying except as a matter of speed and convenience that the Bush administration did bypass the court.
Now the Obama administration is (shamefully) defending the actions of his predecessor. This is not entirely surprising. Intelligence is one area of continuity between governments: it is what Peter Gill called the ‘secret state’, a core that remains constant regardless of changes of administration. Nixon and Bush were both stupid enough to get caught, but the NSA, CIA and FBI are continually looking for different ways to get around domestic regulations on surveillance. Political devices like the UKUSA agreement served this purpose for many years – whereby Canadian and British intelligence services would collect SIGINT on Americans and supply it to the NSA and vice-versa. But GCHQ and others just don’t have the capabilities to carry out the amount of monitoring that now goes on. It’s been the reality for many years now that the NSA in particular does spy on Americans. Again, they have the capabilities so those capabilities are used.
Of course, unlike in the UK, we are talking about the threat of terrorism not anglers catching one-too-many fish; that really does say something about the petty bureaucracy that characterises the UK! However RIPA was also justified originally with reference to terrorism and serious and organised crime. Anyway, the ruling in the Oregon case clearly states that state secrets privilege was not enough to justify warrantless surveillance of suspects, whatever they had allegedly done. It seems that at least is one point of hope that the USA and the UK have in common. Let’s see where these situations now lead in each country…
According to Madsen, two NSA programs for text interception are known to exist, one called PINWALE, which mainly targets Russian e-mails, and secondly the STELLAR WIND program, which “was initiated by the George W. Bush administration with the cooperation of major U.S. telecommunications carriers, including AT&T and Verizon.” and “was a major priority of the NSA program”.
Madesen gives details of how PINWALE and there’s little reason to suppose that STELLAR WIND is very different. Basically these programs search a range of ‘metadatabases’, repositories of captured text from millions of people around the world, outside and inside the USA. The search parameters include: “date-time, group, natural language, IP address, sender and recipients, operating system, and other information embedded in the header”.
Madesen claims that both STELLAR WIND and PINWALE “negated both USSID 18 and the Foreign Intelligence Surveillance Act of 1978 [which were introduced following the Church Committee report into illegal operations by the NSA in the 1960s and early 1970s] by permitting NSA analysts to read the e-mails, faxes, and text messages of U.S. persons”
The three metadatabases are called LION HEART, LION ROAR, and LION FUSION and were developed, as with many NSA systems in conjunction with an external contractor, in this case, Booz Allen Hamilton, which Madsen previously revealed was also responsible for FIRSTFRUITS, program used to track the articles, and communications of particular journalists.
There’s more detail in the article, and one other thing is certain. All these exotic codenames will now be history, as all intelligence agencies have a policy of changing them once they are revealed. Journalists still talk about ECHELON as if it exists as an active NSA operation, but that one hasn’t existed under that name for twenty years or more. There are a huge diversity of NSA programs for all kinds of communications interception and sorting. Each component will have its own terminology and many will be temporary parts of a greater whole, which may not even exist by the time they are revealed. At least former insiders like Madsen can keep some track of developments…