Inside 'Prism' Success: Even Bigger Data Seizure

It may be that, discussed in isolation, the government can avoid talking about what Feingold and Wyden and others have called a backdoor. Which is probably why they don’t want us to “confuse” (that is, understand the relationship between) the business records and content access.


Part of the same issue here:

“Note that even if the real target is the domestic phone number, an analyst working from the metadatabase wouldn’t have a name, just a number.”

An analyst working from the metadatabase wouldn’t necessarily have a name *provided by the telco*. If the metadatabase, or another database created from it, has numerous other columns added by NSA’s indexing and parsing algorithms, the computers can probably guess a name for a large number of the records and then tie in all kinds of other public and private files. In this case, it would probably be easy for an analyst to sift for all contacts with 2-3 degrees of a target who probably have an Muslim-sounding name or probably live in an Arab neighborhood. The FBI has also been getting phone books. So they’ve got numbers and names via other means, at least for landlines. 

And getting numbers/names of cellphones isn’t all that hard, either. If they’re not classified as business records that they can just get like the metadata, they can certainly afford to buy all the commercial databases that contain this stuff.  [FYI - Bush's CarlyleGroup bought out the Yellow Pages and Comcast a few years ago.] 

Plus, the US ChamberOfCommerce was using this outfit to spy on journalists that were giving out information about dirty business episodes. They did a dragnet type of thing on GlennGreenwald and BradFriedman. That instance alone went beyond any reasonable personal rights and Constitutional values. Then the government tried to cover up and give some lame reason for why it was necessary for Chamber and Chamber business partners to do that to people.

The suspicion here is that that extra data — the meta-meta-data or whatever they want to call it, is so robust that they can usually do any invasive thing they want just by querying it and never looking at the cells that contain original metadata from the telcoms. The robustness is *provided* by the telcos’ metadata dumps because all the associations are generated from that database, but that’s done automatically without any pesky “voyeuristic” humans. Since the humans are only looking at the meta-meta-data, which just contains highly technical, esoteric, nothing-to-see-here information (like people’s real names, addresses, employers, travel history…), it’s as Constitutionally American as Betsy Ross eating a McDonald’s apple pie.  
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Inside 'Prism' Success: Even Bigger Data Seizure

I just want to point to a part of this exchange that everyone is ignoring (but that I pointed out while live tweeting this).

Mueller: I’m not certain it’s the same–I’m not certain it’s an answer to the same question.

Mueller didn’t deny the NSA can get access to US person phone content without a warrant. He just suggested that Nadler might be conflating two different programs or questions.

And that’s one of the things to remember about this discussion. Among many other methods of shielding parts of the programs, the government is thus far discussing primarily the two programs identified by the Guardian: the phone metadata collection (which the WaPo reports is called MAINWAY) and the Internet content access (PRISM).

Thus, we are effectively just talking about two programs, and not two that intersect via targeted technology, as MAINWAY would with NUCLEON and MARINA with PRISM. So, while there are a slew of other possibilities for what Mueller might mean by “another question,” one big one is “how may an analyst access NUCLEON information if she had MAINWAY data”?

And, as Sanchez notes in his piece, the way 702 is supposed to work (and indeed, would have to work for the claims made about PRISM’s role in thwarting the Najibullah Zazi attack to be remotely true) is that US person information comes up along with targeted foreign targets. Indeed, as I noted last year during the FISA Amendments Act debate, in an effort to defeat this amendment prohibiting effectively what Sanchez has laid out, Sheldon Whitehouse said that getting US content without a warrant was the entire point.

He referred back to his time using warrants as a US Attorney, and said that requiring a warrant to access the US person communication would “kill this program,” and that to think warrants “fundamentally misapprehends the way in which this program operates.”

The possibility that the government would do this kind of thing has been raised repeatedly since Russ Feingold did so in 2009 during the FISA Amendments Act debates, speaking specifically about the content of calls to people overseas.

KEEP READING 
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Inside 'Prism' Success: Even Bigger Data Seizure

The CNET “Bombshell” and the FOUR Surveillance Programs  

NSA has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.

In general, I’m just going to outsource my analysis of what the exchange means to Julian Sanchez.

What seems more likely is that Nadler is saying analysts sifting through metadata have the discretion to determine (on the basis of what they’re seeing in the metadata) that a particular phone number or e-mail account satisfies the conditions of one of the broad authorizations for electronic surveillance under §702 of the FISA Amendments Act.
[snip]

The analyst must believe that one end of the communication is outside the United States, and flag that account or phone line for collection. Note that even if the real target is the domestic phone number, an analyst working from the metadatabase wouldn’t have a name, just a number.  That means there’s no “particular, known US person,” which ensures that the §702 ban on “reverse targeting” is, pretty much by definition, not violated.
None of that would be too surprising in principle: That’s the whole point of §702!

That is, what Nadler may have learned that the same analysts who have access to the phone metadata may also have authority to issue directives to companies for phone content collection. If so, it would be entirely feasible for the same analyst to learn, via the metadata database, that a suspect phone number is in contact with the US and for her to submit a request for actual content to the providers, without having to first get a FISA order covering the US person callers directly. Since she was still “targeting” the original overseas phone number, she would be able to get the US person content without a specific order.

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Inside 'Prism' Success: Even Bigger Data Seizure

NSA admits listening to U.S. phone calls without warrants

National Security Agency discloses in secret Capitol Hill briefing that thousands of analysts can listen to domestic phone calls. That authorization appears to extend to e-mail and text messages too.
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