NSA Section 215 Program: Unreasonable, Inarticulable and Without Cause



NSA Boundless Informant global heat map showing U.S. surveillance capabilities. Green shades indicate lowest level of intelligence gathering whereas red is the highest. For further information please refer to The Guardian's article "Boundless Informant: the NSA's secret tool to track global surveillance data." Edward Snowden revealed Boundless Informant.

 

President's Surveillance Program

Past and present executive orders are violating American privacy rights. Knowledge of these abuses comes incrementally.

In response to probing media reports, intelligence agencies' Inspectors General were required to survey executive branch sponsored surveillance activities from September 2001 through 2006. The Inspectors General '09 report revealed that President Bush's reconnaissance initiatives involved "unprecedented collection activities" that were based on "factually flawed" legal theories. The President's Surveillance Program "became less a temporary response to the September 11 terrorist attacks and more a permanent surveillance tool.”

The Electronic Frontier Foundation provides insight on "How the NSA's Domestic Spying Program Works."

Suspected government spying enterprises were confidential until intervention by the Church Committee, Edward Snowden and other involved citizens. Confirmed intelligence agency operations, some predating September 11, 2001 are: ECHELON, Main Core, MINARET, SHAMROCK, PROMIS, BLARNEY, RAGTIME, Turbulence, Pinwale, MAINWAY, PRISM, Upstream Collection, XKeystore, Dropmire, Fairview, Surveillance Detection Unit, Bullrun,  Tempora and Muscular.

The German newspaper, Der Spiegel, recently described the NSA's Toolbox and the agency's elite Tailored Access Operation hacking unit. The TAO team generally relies on tech spyware innovations but occasionally uses old-fashioned methods such as computer interception. As Der Spiegel explains:

If a target person, agency or company orders a new computer or related accessories, for example, TAO can divert the shipping delivery to its own secret workshops. The NSA calls this method interdiction. At these so-called "load stations," agents carefully open the package in order to load malware onto the electronics, or even install hardware components that can provide backdoor access for the intelligence agencies. All subsequent steps can then be conducted from the comfort of a remote computer.

January 2014 Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court

Because of Edward Snowden's June 2013 disclosures, thirteen senators requested an NSA activity review by the Privacy and Civil Liberties Oversight Board [PCLOB]. This five member executive branch agency created by the Intelligence Reform and Terrorism Prevention Act of 2004 is responsible for verifying that surveillance agencies are operating within constitutional strictures while protecting the country from attacks.

The questionable NSA surveillance techniques under evaluation by the Board emanate from sections 702 and 215 of the 2001 Patriot Act . Presidential legal staff interpretations of these provisions allowed the NSA to capture all Americans' telephone call records and to seize electronic communications of non-U.S. individuals residing in foreign countries.

Section 215, as written, permits the FBI as part of an investigation to acquire pertinent business records. According to the Board, the NSA's all encompassing telephone metadata retrieval system does not align with the law. The statute "does not authorize the NSA to collect anything." Furthermore NSA practices violate the Electronic Communications Privacy Act . p. 10

The Board discredits the Reenactment Doctrine premise. By extending Section 215 sunset dates without change, administration legal advisors argue that Congress is presumed to have been aware of FISC rulings and NSA's activities. There were no court opinions at the time of the extensions and members of Congress were not fully informed on the scope of the NSA's bulk phone methodology. pp.  96-98

NSA actions under Section 215 demonstrate "minimal value in safeguarding the nation from terrorism." p.11

Telephone contact data when coupled with other intelligence agencies' captured information poses serious threats to civil liberties and privacy. p. 12

Numerous NSA noncompliance issues are referenced in the report. In one notable instance an unnamed telecommunication source inadvertently provided the agency with large volumes of credit card information for a six-month period. This data is still held by the NSA. p. 55

If the president's interpretation of Section 215 stands, Americans can expect even greater mapping of their daily affairs. p. 63

For the reasons cited, we recommend that the NSA's calling records retrieval system be terminated and that the collection and corporate store data thus banked be purged. pp. 16 & 169

The PCLOB findings complement those of the " Liberty and Security in a Changing World" reporters. Both groups have advised the president that the NSA telephone data collection program is illegal.

Questionable Intelligence Leads to American Nightmares

Following the March 2004 Madrid train bombings the FBI arrested Brandon Mayfield as a material witness in connection with the incident. Dismissing Spanish authorities' assurances that Mr. Mayfield's fingerprints did not match those found at the scene, the FBI held him incommunicado for more than two weeks. The FBI apologized for their actions.

Richard Jewell, a former police officer working security at the Centennial Olympic Park in 1996 discovered a bomb-stuffed backpack and was credited with saving hundreds of lives. Within several days the FBI informed the media that Mr. Jewell was a suspect based on the agency's lone bomber theory. The FBI's claims were baseless. Mr. Jewell was not the perpetrator.

The FBI and Attorney General Ashcroft said that Steven Hatfill was a person of interest in the 2001 anthrax mailings. This is another example of the government's use of the press to conduct an investigation. Dr. Hatfill was never charged and he sued  Attorney General Ashcroft et. al. for violating his rights to privacy. The government settled the Hatfill complaint.

James Yee, a Guantánamo Army chaplain charged with espionage in 03, was held in solitary confinement for 76 days. Unable to prove its allegations, the military closed the Yee case.

Wen Ho Lee, a Los Alamos scientist, was indicted on charges of unlawful possession of national defense thermonuclear weapon information in 1999. Dr. Lee spent nine months in solitary confinement before being released. In a concession agreement Dr. Lee pleaded guilty to mishandling classified material. The Senate report, "Government's Handling of the Investigation and Prosecution of Dr. Wen Ho Lee," defends the prosecutor's allegations and actions.

Fake or Faulty "Weapons of Mass Destruction" Intelligence

The U.S. government's "invade Iraq" campaign was predicated on weapons of mass destruction threats. There were no WMD's.

Indefinite Detention under § 1021 (b) (2) of the National Defense Authorization Act for Fiscal Year 2012

If intelligence agencies ascertain through legitimate or other means that an American citizen poses a threat to national security, the government may incarcerate that individual for an unlimited period.  Suspects held under Section 1021 normally have to wait years for habeas relief and a judge determines guilt or innocence. Judge Katherine B. Forrest ruled against the government re 1021 detentions. Judge Forrest's verdict was overturned.