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"Reported Drop in Surveillance Spurred a Law":
Today's New York Times has this very interesting story about why the Democratic leadership in Congress recently agreed to amend FISA.
Just an Observer:
I found the background detail about the intelligence briefings interesting, especially the part quantifying the situation after the adverse court ruling. (The three Times reporters are playing catch-up on this one because the paper utterly failed to do any reporting on the legislative story as it was happening last week.)

But I am dumbfounded that today's backgrounder and sidebar never explain what the bill Congress passed actually does. In fact, reading them together, one would have the false impression that all the legislation does is legalize warrantless surveillance of foreign-to-foreign traffic passing through a U.S. switch. Actually, it also legalizes such surveillance of foreign-to-domestic traffic, which is what the controversy is all about.

Risen and Licthblau, winners of the Pultizer for originally disclosing the NSA warrantless surveillance program in 2005, have not performed well at all covering the legal and legislative aftermath, IMHO.
8.11.2007 2:47pm
Bruce Hayden (mail) (www):
I found the article fairly in line with everything else we know, and fairly even handed. They pointed out that one of the big things was the problems that the NSA was now having intercepting purely foreign communications routed through the U.S., esp. in light apparently of that one FISC opinion. They didn't get into the reasons why the (secret) decision was causing so much problem, but still, it was a fairly balanced portrayal of the situation.

I, for one, despite being a supporter of the government here, would not have opposed some more Congressional oversight. There was some more oversight, but not as much as even I would have liked, as Congress had painted themselves into a corner and had to act before recessing.
8.11.2007 2:51pm
Bruce Hayden (mail) (www):
But I am dumbfounded that today's backgrounder and sidebar never explain what the bill Congress passed actually does. In fact, reading them together, one would have the false impression that all the legislation does is legalize warrantless surveillance of foreign-to-foreign traffic passing through a U.S. switch. Actually, it also legalizes such surveillance of foreign-to-domestic traffic, which is what the controversy is all about.
As usual, you paint with too broad of a brush. The reality is that some international communications may now be intercepted w/o violating the wording of FISA. But to suggest that all such communications are now fair game ignores the "directed" language, which was inserted to intentionally to limit it to the situation where the foreign party is the one being targeted.
8.11.2007 2:55pm
Just an Observer:
Bruce Hayden,

I agree that the "directed" language is significant, and perhaps I should have mentioned it. If I had been writing more than one paragraph to summarize the issues for the cognicenti, here. I certainly would have mentioned it.

My criticism of the NYT reporters is that they wrote a long story and a sidebar purporting to explain the legislation in context, and they ignored the heart of the controversy completely and mischaracterized the effect of the act. The intelligence briefings apparently centered on foreign-to-foreign communications, and so did the political arguments for the bill. But the actual legislation is much broader.

Now, as for the meaning of the "directed" language, that is at best unknown. The key new section 105A certainly does not make clear that it requires an identified "target." The section easily can be read not to require that at all, but only a reasonable belief that some person abroad is the likely sender or receiver of a surveilled communication.
8.11.2007 3:42pm
cboldt (mail):
The TSP as described by the administration did not limit warrantless sureveillance to where the suspected terrorist (al Qaeda) party was outside the US.
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some links to administration pronouncements
8.11.2007 4:19pm
cboldt (mail):
I also noticed that what passed last week has been kicking around since at least September 2006.
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Don't expect the NYT (or anybody else) to do your homework for you.
8.11.2007 4:30pm
cboldt (mail):
-- "directed" language, which was inserted to intentionally to limit it to the situation where the foreign party is the one being targeted. --
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"Targeted" implies a degree of specific knowledge, usually the connection between a communication and a particular person. E.g., we want to listen in on Osama bin Laden conversations.
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"Targeted" could be less specific than that, such as when we know a voice, or an anonymous handle on an e-mail, etc. -- but just the same, "targeted" implies a degree of tight focus.
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"Directed at," on the other hand, can be a location or an entity larger than an individual person.


the specific facilities, places, premises, or property at which the electronic surveillance will be directed
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the identity of any foreign power against whom electronic surveillance will be directed


The point of all that is that I don't assign legal equivalence between "surveillance of a target person reasonably believed to be outside the US" and "surveillance directed at a person reasonably believed to be located outside the US."
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In the formula passed into law, the individual person outside the US whose communications have been acquired could be a target, but isn't necessarily one.
8.11.2007 4:49pm
cboldt (mail):
In a very broad application and construction, can the "surveillance [is] directed at a person reasonably believed to be located outside of the United States" quality be satisfied when the activity is installation of a tap or duplication facility at a US-based switch that handles ONLY international communications traffic? What further specificity is required in order to establish that obtaining the fruit of that tap represents "surveillance directed at a person reasonably believed to be located outside of the United States."?
8.11.2007 5:15pm
Just an Observer:
cboldt,

I have posed the same hypothetical about the dedicated international switch, which is not fanciful because it resembles what is speculated to have been involved in the so-called "TSP" surveillance.

I think the "reasonably believed to be located outside of the United States" part is easily satisfied in that scenario, and I think an NSA officer in that situation could swear to that. (Maybe he also would filter to ensure that the phone number or IP address is in a foreign domain, which of course could also be done at a non-dedicated switch.)

To play devil's advocate, that same NSA officer would be making an assumption that the foreign sender/receiver was a "person," rather than a farm animal, potted plant or space alien.
8.11.2007 6:19pm
cboldt (mail):
Maybe a hunting analogy is apt. Just fishing around at this point ...
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When you are in the tree stand, your surveillance is directed at deer.
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When a deer appears, that deer may (or may not) become a target.
8.11.2007 6:46pm
Bill Sommerfeld (www):
cbolt: with respect to internet-based communications, the layered and nested nature of the protocols involve make nothing certain about the physical location of the ultimate origin or destination of communication fragments contained in packets passing a single point of observation. For instance, perhaps a US citizen working in New York is an employee of a multinational company which hosts its email services in London, with the result that his "let's go get pizza" email messages to the guy in the next cube will be routed via a server in London.

I'd think there would be some amount of uncertainty involved in every parameter used to select traffic for the tap; that said, I'd also think that a significant factor would be quickly cutting down the amount of clearly irrelevant traffic they have to put in front of human analysts.

But if the traffic selected for human inspection has to pass through a particular physical location, have an ip addresses from specific networks in the ip packet header, and mention specific email addresses in the smtp envelope or message headers, I'd think that would be specific enough to be reasonably certain that the communications were to or from a target of surveillance.

But I'd have nearly the same degree of certainty about the accuracy of the filter if the tap were placed between any two routers in an ISP backbone.
8.11.2007 7:12pm
cboldt (mail):
-- I'd think there would be some amount of uncertainty involved in every parameter used to select traffic for the tap --
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There is a physical layer. There are fibers that cross borders, and some of those border crossing transit oceans.
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Just give me all of that. It's surveillance directed at a person reasonably believed to be located outside of the United States.
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-- I'd also think that a significant factor would be quickly cutting down the amount of clearly irrelevant traffic they have to put in front of human analysts. --
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Hence the secrecy in sorting and decoding capability. Just pass over the raw communications flow, if you please.
8.11.2007 7:31pm
SenatorX (mail):
If I remember correctly from a Wired article a ways back there are at least "fiber splitters" at key junctions. A bit of degradation and I think it was tricky to split off a piece of the light signal but it was done. Filtering the packets surely and after that I assume it's all data mining based on algorithms. At least this!

I think the real problem would be creating good algorithms to find what you are looking for, because of the quantity of data. Eventually a human would have to review what was captured too.
8.11.2007 9:05pm
Mary Katherine Day-Petrano (mail):
Maybe there WAS a drop, but now the floodgates will open on the privacy of every American, and who will know the whatfor? The invasion of provacy is, well, secret.
8.11.2007 9:09pm
Bart (mail):
The question is why it took a 75% drop in intelligence acquisition and a spike in chatter threatening attacks on the nation to even get this bill out of the Dem controlled committees. Even then, these congressional Asses (meant both as a use of the party symbol and an objective description of their character in this matter) did not finally move to stop attacks on the country, but rather to avoid the political damage of being blamed for an attack.

Amazing.

I despair that it will take another 9/11 (or maybe a nuke) to wake these people up.
8.11.2007 10:05pm
cboldt (mail):
It seems all aspects of the the August 2007 FISA debate were aired in one form or another, a year ago.
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When the administration submitted its TSP to FISA, it knew, in advance, that such submission could impinge on foreign-to-foreign interception.
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Perhaps the administration submitted TSP to FISA as a means to deliberately lose intelligence, so as to create a problem where the solution is to modify FISA.
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Lt. Keith Alexander (Director - NSA) Prepared Statement before Senate Judiciary Committee
July 26, 2006
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I am pleased to be here today to provide testimony in support of the National Security Surveillance Act of 2006 (S. 2453), which would amend the Foreign Intelligence Surveillance Act of 1978 ...
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Today, the U.S. Government is often required by the terms of the statute to make a constitutionally based showing of probable cause in order to target for surveillance the communications of a foreign person overseas. Frequently, though by no means always, that person's communications are with another foreign person overseas.
8.12.2007 9:15am
LongSufferingRaidersFan (mail):
Does anyone but the choir still read the NYT???
8.12.2007 2:40pm
Bruce Hayden (mail) (www):
If I remember correctly from a Wired article a ways back there are at least "fiber splitters" at key junctions. A bit of degradation and I think it was tricky to split off a piece of the light signal but it was done. Filtering the packets surely and after that I assume it's all data mining based on algorithms. At least this!
The problem is the location of the fiber splitters. Yes, it might be possible to insert them here, but less likely under the ocean. The runs between repeaters are now long enough that it would likely be necessary to tap in in the middle of a run. All done at the bottom of the ocean, and with cables where the hair like strands not only have to be fairly straight but also retain their mirror like coatings to transmit over the distances involved.

So, yes, it might be technologically almost feasible to tap some traffic on the bottom of the ocean, but the only realistic way to tap enough of it to make it worthwhile is to do so at the switches in the U.S. There, the signals have been turned from optical back into electrical.

Another problem with at least fiber optics, is that a lot of the signaling information is out-of-band, meaning that it is not sent with the conversation, but either in another time slice of the TDM slices at a certain frequency on a certain fiber, or at a different frequency (or color), or indeed, on another fiber entirely. This is the information about who is calling whom, etc. And it is only tied together with the corresponding conversations at the switches. So, tapping a single fiber, or likely even a fiber cable, out in the middle of the ocean, might be an interesting academic exercise, but is unlikely to get the NSA the information they need.

As noted above, the Internet is even more problematic. Email and pretty much everything else, is packetized, and the packets are sent over different routes, depending on any number of factors. Only the email header has the real source and destination information (and that may be in more than one packet). And it is fairly easy to route stuff through relay sites that can be all over the world. That is something that most of us don't bother with, but knowing that the NSA is looking for your email is likely an incentive to utilize that sort of thing. With email, it is often difficult, if not impossible, to know whether either end is really in the U.S.
8.12.2007 2:51pm
Bruce Hayden (mail) (www):
I will admit that the use of "targeted" in 1501(f) and "directed" in the new section bothers me a bit. I would have been more comfortable with common language. But I do remember listening (CSPAN) or reading something from the intelligence community in the last week implicitly pointing out that they were viewing the two words as almost synonyms.

The way that they described the operation of programs like the TSP, there are foreign targets out there, and the NSA is looking for traffic to or from those targets, and when communications from or to those targets is detected, the interception is automatic. In other words, a list of targeted phone numbers, and any calls from or to them are recorded, regardless of where in the world the other end is. Almost all of the traffic being recorded is purely foreign, since that is who the targets mostly deal with. But some does involved destinations in the U.S., and that is part of the problem. This was made much worse because that one FISC judge was requiring certitude that neither end was in the U.S., and often the NSA couldn't provide that. They thought it unlikely, just not impossible (and thus new language about reasonable belief).
8.12.2007 3:01pm
Just an Observer:
Bruce Hayden:

I will admit that the use of "targeted" in 1501(f) [I assume that is meant to be 1801(f)]and "directed" in the new section bothers me a bit. I would have been more comfortable with common language. But I do remember listening (CSPAN) or reading something from the intelligence community in the last week implicitly pointing out that they were viewing the two words as almost synonyms.


You may also have read the same thing in this blog, in Orin's recent background interview with a senior White House official. No doubt Orin reported that interview honestly in paraphase. But even if such administration officials said all that on the record from the White House podium, it would not be anything like statutory language binding the government.

There is simply nothing in the statute equating "surveillance directed at" with "acquisition ... of the contents of any wire or radio communication sent by or intended to be received by a particular, known ... person ... if the contents are acquired by intentionally targeting that ... person."
8.12.2007 3:50pm
Just an Observer:
The Washington Post weighed in today with its own version of the negotiations between McConnell and congressional Democrats: How the Fight for Vast New Spying Powers Was Won

Compared to the New York Times report at the top of this blog post, Post reporters Joby Warrick and Walter Pincus
produced a more informative report of both the political events and the real controversies about the legislation.
8.12.2007 4:15pm
cboldt (mail):
I see "directed at" having a wide range of usage. The phrase can be applied to an identifiable individual, and in that usage, it would be synonymous with using "targeted" as against an unidentifiable individual.
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But as the scope of the surveillance widens, it's less sensible to claim the object is a "target." E.g., we likely have surveillance directed at Iran.
8.12.2007 5:49pm