Blame Congress’ Patriot Act not the NSA or FBI

Prism-1When self-proclaimed whistle blower, Edward Snowden disclosed a PowerPoint presentation allegedly detailing the Prism computer system[1] at the heart of foreign data collection program, he set off a firestorm of debate over the role of  clandestine electronic surveillance on individuals outside the United States and the U.S. residents who communicate with them.

In the week that has followed, some clarity has emerged. First, the Prism system is not a code name for a clandestine operation, but the name of the computer system used to collect and store the data. According to the Director of National Intelligence, that computer system operates under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. § 1881a).

Section 702 provides that “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” The reasonable belief focuses on the location of the target, not the threat posed by the target. Most of the other limitations emphasize that this should not be used if the purpose is to target someone inside the U.S.

Nowhere in Section 702 is there a requirement that the information is relevant to an investigation at some level – “specific articulable facts giving reason to believe,” or “reasonable suspicion.” Probable cause is likely not within the realm of possibility. The law allows and even encourages broad, general sweeping of data, which can then be analyzed for patterns and anomalies.

The Section 702 directives are the subject of quasi-judicial review. The FISA Court is comprised of 11 federal judges assigned this additional duty by the Chief Justice of the Supreme Court. This internally appointed judicial panel has operated since 1979. In that time, according to the Wall Street Journal, it has rejected 11 applications for various surveillance requests. During that time, the number of approved surveillance requests has been in excess of 33,900 or an approval rate of  99.97 percent. Without knowing anything more, it is inconceivable that any review process with over 99 percent approvals can constitute a meaningful review.

Harvard Law Professor and former U.S. District Judge Nancy Gertner highlighted the structural problem of the FISA Court.

It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.

The problem, therefore, is not a secret or rogue NSA plot but instead a widely supported provision of the Patriot Act designed to be used precisely as the NSA has been doing. It has executive, legislative and judicial support. But because it is operated by a close-knit association, the separation of powers has proven irrelevant as a limitation on its operation.

Moreover, the Patriot Act has other sections equally potent at eavesdropping on private information. As summarized by the ACLU, FISA Section 215 “allows the FBI to order any person or entity to turn over ‘any tangible things,’ so long as the FBI ‘specif[ies]’ that the order is ‘for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.’” Section 215 (50 U.S.C. 1801 et seq.)

A secret NSA phone wiretapping order was also released last week highlighting the scope of metadata collection within the U.S. under Section 215.

This FISA Court Order targeting Verizon, required Verizon on an “ongoing, daily basis” to give the NSA information on all telephone metadata in its systems. Since the Section 702 orders deal with foreign data, this Section 215 court order excluded “telephony metadata for communications wholly originating and terminating in foreign countries.” The court order explains the scope of the request:

Telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. [Sec.] 2510(8), or the name, address, or financial information of a subscriber or customer.

Essentially this means that all of us with Verizon phones can be tracked anywhere in the U.S., our interaction with any other parties triangulated, our First Amendment rights of Association violated, and our notion of privacy eliminated. Non-Verizon subscribers likely are subject to identical orders. There is no reason to doubt that these orders are not routinely issued to track all phone and cell phone movement data.

Mary DeRosa summarizes the changes to Section 215 which led to the Verizon court order.

Previously, FISA required the FBI to present the [FISA Court] “specific articulable facts giving reason to believe” that the subject of an investigation was a “foreign power or the agent of a foreign power.” After section 215, the government is required only to assert that the records or things are sought for a foreign intelligence investigation or to protect against international terrorism or clandestine intelligence activities, although the investigation of a United States person may not be “solely upon the basis of activities protected by the first amendment to the Constitution.” There is no requirement for an evidentiary or factual showing and the judge has little discretion in reviewing an application. If the judge finds that “the application meets the requirements” of the section, he or she must issue an order as requested “or as modified.”

Neither the NSA nor the FBI are doing anything other than that approved by Congress. Indeed, were these departments found not to be using the authority granted by Congress, there would be outrage on Capitol Hill. Instead it is the law that has vastly over-extended the government’s reach into the movements and activities of the public, both domestic and foreign.

Moreover, the sweep of the law is growing broader by the day as more and more devices and technologies use remote communications to share information. While it might require a warrant to track a vehicle, the Internet enabled Pandora music player, the self-adjusting oil change settings, and the many other connected technologies are not subject to that warrant requirement. The movement of such cars will be routinely swept into the FBI’s database as part of the Section 215 orders.

The FTC has initiated a review of the ever-growing “Internet of Things,” which is to mean the “growing connectivity of consumer devices, such as cars, appliances, and medical devices.” Combine the power of the FBI and NSA to order metadata and tracking information on all digital data with the interconnectivity of medical devices, RFID-tagged products, installed devices on vehicles, and smart phone apps, a digital map emerges. Like ants in an ant-farm, every person’s digital trail will be on display before the government. Increasingly sophisticated data analytics will eventually enable the path of each individual ant to be highlighted and sorted from among the swarm.

The growing connectivity that has extended the Patriot Act’s reach into more and more aspects of our daily lives require that we revise the laws to reign in the power of government and create a meaningful, statutory right of privacy. These revelations add attention to the problem and highlight the lack of transparency over this tracking. Congress is not shocked at these revelations because they voted to create the programs and have been repeatedly brief on their use. It is the people who have been left in the dark. Given the growth of the programs and the power of the technology they employ, it is time for a more thoughtful, balanced statutory approach.

[1] provided the link to the 2002 New York Times article first describing what is now the Prism computer system. See

State of the Cyber Union: Policy Directive + Executive Order = Expansive Regulatory Efforts

In President Obama’s 2013 State of the Union Address, the president included announcement of a long-expected Executive Order as well as a Presidential Policy Directive focusing on the need for better cybersecurity coordination and defense. This comes on the heels of a classified National Intelligence Estimate reported first by The Washington Post which “identifies China as the country most aggressively seeking to penetrate the computer systems of American businesses and institutions to gain access to data that could be used for economic gain.” The report ties directly into the focus of the Executive Order, emphasizing the risk both to critical infrastructure and to industry.

At the heart of the Executive Order are voluntary efforts on the part of industry and the role of the Federal Government in increasing coordination. “The Cybersecurity Framework shall incorporate voluntary consensus standards and industry best practices to the fullest extent possible.” NIST is authorized to create a preliminary Cybersecurity Framework within 240 days. Compliance incentives will be developed to encourage voluntary compliance. As these standards gain adoption, they will set a new reasonableness standard, pulling the more reluctant companies up because of the risk of negligence and loss.

But the real action of the Executive Order is Section 10 which provides that each regulatory agency must report if the agency has the regulatory scope to implement the Cybersecurity Framework. If it does, presumably it will use those regulatory powers to transform the voluntary program into a regulatory one; if it does not, the agency will be expected to engage in the necessary rulemaking to do so.

The Executive Order  defines critical infrastructure very broadly to mean “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.” The Policy Directive provides specific guidance to the Office of Homeland Security and to the other federal agencies targeted with enforcing protections of critical infrastructure and regulatory compliance.

Neither order is overwhelming on its face, but the message is clear. The Federal Government will take an aggressive approach to cybersecurity and will use the broader regulatory authority at its disposal to do so. Though it has been invited to pass legislation, Congress does not need to act because every industry sector has some regulatory oversight and cybersecurity will soon be layered on top of the existing regulations. An excerpt from the Policy Directive highlights the expansionist approach:

Additional roles and responsibilities for the Secretary of Homeland Security include:

  1. Identify and prioritize critical infrastructure, considering physical and cyber threats, vulnerabilities, and consequences, in coordination with SSAs and other Federal departments and agencies;

  2. Maintain national critical infrastructure centers that shall provide a situational awareness capability that includes integrated, actionable information about emerging trends, imminent threats, and the status of incidents that may impact critical infrastructure;

  3. In coordination with SSAs and other Federal departments and agencies, provide analysis, expertise, and other technical assistance to critical infrastructure owners and operators and facilitate access to and exchange of information and intelligence necessary to strengthen the security and resilience of critical infrastructure;

  4. Conduct comprehensive assessments of the vulnerabilities of the Nation’s critical infrastructure in coordination with the SSAs and in collaboration with SLTT entities and critical infrastructure owners and operators;

  5. Coordinate Federal Government responses to significant cyber or physical incidents affecting critical infrastructure consistent with statutory authorities;

  6. Support the Attorney General and law enforcement agencies with their responsibilities to investigate and prosecute threats to and attacks against critical infrastructure;

  7. Coordinate with and utilize the expertise of SSAs and other appropriate Federal departments and agencies to map geospatially, image, analyze, and sort critical infrastructure by employing commercial satellite and airborne systems, as well as existing capabilities within other departments and agencies; and

  8. Report annually on the status of national critical infrastructure efforts as required by statute.

When combined with the additional power of regulation across the spectrum of energy, finance, communications, health, agriculture, information technology and other sectors, the reach is broad enough to rewrite the regulatory landscape much as the USA Patriot Act did in the wake of 9/11.

Privacy may well be another of the casualties of this war. The Executive Order adds that “[a]gencies shall consider the assessments and recommendations of the report in implementing privacy and civil liberties protections for agency activities,” but asks for little more than an annual report. In contrast, corporate reporting is singled out. “Information submitted voluntarily in accordance with 6 U.S.C. 133 by private entities under this order shall be protected from disclosure to the fullest extent permitted by law.” This has been the case with the Patriot Act and the President’s policies give little comfort.

Confidentiality, rather than privacy, is part of the new regime. Paul Rosenzweig, writing the Lawfare blog from Brookings highlights the importance of the short-list: a subset of critical infrastructure organizations within the identified industry which make up the heart of each industry and will be singled out for heightened cybersecurity engagement.

Confidential Identification – The EO has one true innovation in it – a confidential naming program that will identify the critical cyber infrastructure “where a cybersecurity incident could reasonably result in catastrophic regional or national effects on public health or safety, economic security, or national security.”  This is a subset, of course, of the earlier broader definition.

Being an identified company may bring greater security obligations or improved resources or no change at all. Only time will tell. The impact will vary tremendously depending of the existing preparedness of each company.

The National Intelligence Estimate on cybersecurity risk makes clear that the threat must be addressed.

 The report, which represents the consensus view of the U.S. intelligence community, describes a wide range of sectors that have been the focus of hacking over the past five years, including energy, finance, information technology, aerospace and automotives, according to the individuals familiar with the report, who spoke on the condition of anonymity about the classified document.

–          The Washington Post

The only question is the cost of the response. China, Russia, Iran, Israel, North Korea and other countries are known for releasing global cyber-attacks, some focused on military and political topics, while others highlight corporate espionage. Moreover, as I mentioned in an earlier post, the intruders use directed attacks on employees and independent contractors who open links, photos or already infected USB devices. Already behind firewalls, these tools install malignant code to glean passwords, open files and glean information which is sent back to the intruder. Some of these attacks are directly at U.S. infrastructure, others at economic targets, while many others affect U.S. interests only as collateral damage to regional conflicts which do not involve U.S. participants.

Nonetheless, the risks are increasing. After the President’s speech one thing is clear. Using the State of the Union as the basis for the announcement of the Cybersecurity Executive Order and Policy Directive has placed this topic near the top of the national agenda.


President Barack Obama delivers the State of the Union address in the House Chamber at the U.S. Capitol in Washington, D.C., Feb. 12, 2013. (Official White House Photo by Chuck Kennedy)