Nunes, Trump, Obama and Who Watches the Watchers?

Written by: Stephen Hsu

Primary Source:  Information Processing

I’ve made this separate entry from the update to my earlier discussion FISA, EO 12333, Bulk Collection, and All That. I believe the Nunes revelations from yesterday support my contention that the Trump team intercepts are largely “incidental” collections under 12333, and the existence of many (leaked) intel reports featuring these intercepts is likely a consequence of Obama’s relaxation of the rules governing access to this bulk data. At least, the large number of possible leakers helps hide the identities of the actual leakers!

EO12333 + Obama OKs unprecedented sharing of this info as he leaves office = recent leaks? Note the use of the term “incidentally” and the wide dissemination (thanks to Obama policy change as he left office).

WSJ: … “I recently confirmed that on numerous occasions the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition,” Mr. Nunes said, reading a brief statement to reporters on Capitol Hill on Wednesday afternoon. “Details about U.S. persons associated with the incoming administration—details with little or no apparent foreign intelligence value—were widely disseminated in intelligence community reporting.”

… Mr. Nunes added that it was “possible” the president himself had some of his communication intercepted, and has asked the Federal Bureau of Investigation, National Security Agency and other intelligence agencies for more information.

The change put in place as Obama left office is probably behind the large number of circulating reports that feature “incidentally” captured communications of the Trump team. The NYTimes article below is from February.

NYTimes: … Until now, National Security Agency analysts have filtered the surveillance information for the rest of the government. They search and evaluate the information and pass only the portions of phone calls or email that they decide is pertinent on to colleagues at the Central Intelligence Agency, the Federal Bureau of Investigation and other agencies. And before doing so, the N.S.A. takes steps to mask the names and any irrelevant information about innocent Americans.

[ So FBI is only getting access to this data for the first time. It is interesting that Nunes said that NSA would comply with his request for more information but that FBI has not complied. It seems possible that FBI does not yet have good internal controls over how its agents use these new privileges. ]

The new system would permit analysts at other intelligence agencies to obtain direct access to raw information from the N.S.A.’s surveillance to evaluate for themselves. If they pull out phone calls or email to use for their own agency’s work, they would apply the privacy protections masking innocent Americans’ information — a process known as “minimization” — at that stage, Mr. Litt said.

FISA covers a narrow band of surveillance: the collection of domestic or international communications from a wire on American soil, leaving most of what the N.S.A. does uncovered. In the absence of statutory regulation, the agency’s other surveillance programs are governed by rules the White House sets under a Reagan-era directive called Executive Order 12333.

… [it is unclear what] rules say about searching the raw data using names or keywords intended to bring up Americans’ phone calls or email that the security agency gathered “incidentally” under the 12333 surveillance programs

It appears that the number of individuals allowed to search bulk, incidentally collected data has been enlarged significantly. Who watches these watchers? (There must now be many thousands…)

Sophos: Obama administration signs off on wider data-sharing for NSA … Patrick Toomey, a lawyer for the American Civil Liberties Union (ACLU), put it in an interview with the New York Times, 17 intelligence agencies are now going to be “rooting… through Americans’ emails with family members, friends and colleagues, all without ever obtaining a warrant”.

The new rules mean that the FBI, the CIA, the DEA, and intelligence agencies of the US military’s branches and more, will be able to search through raw signals intelligence (SIGINT): intercepted signals that include all manner of people’s communications, be it via satellite transmissions, phone calls and emails that cross network switches abroad, as well as messages between people abroad that cross domestic network switches.

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Stephen Hsu
Stephen Hsu is vice president for Research and Graduate Studies at Michigan State University. He also serves as scientific adviser to BGI (formerly Beijing Genomics Institute) and as a member of its Cognitive Genomics Lab. Hsu’s primary work has been in applications of quantum field theory, particularly to problems in quantum chromodynamics, dark energy, black holes, entropy bounds, and particle physics beyond the standard model. He has also made contributions to genomics and bioinformatics, the theory of modern finance, and in encryption and information security. Founder of two Silicon Valley companies—SafeWeb, a pioneer in SSL VPN (Secure Sockets Layer Virtual Private Networks) appliances, which was acquired by Symantec in 2003, and Robot Genius Inc., which developed anti-malware technologies—Hsu has given invited research seminars and colloquia at leading research universities and laboratories around the world.
Stephen Hsu

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