FRINFORMSUM 9/12/2013: NSA Misusing Phone Records, Allowed to “search deliberately for Americans’ communications” Anyway, and More

Director of National Intelligence James Clapper is having another bad week, as his office is forced to release damning documents about the NSA’s phone log record programs. Photo credit AFP.

The Electronic Freedom Foundation (EFF) won the release of a trove of important documents detailing the National Security Agency’s (NSA) phone log record program this week. The Office of the Director of National Intelligence was compelled to release hundreds of pages of documents in response to a Freedom of Information Act (FOIA) lawsuit. The disclosed documents demonstrate “that the NSA had been misusing its phone records surveillance program for years,” to the point that it was rebuked by the Federal Intelligence Security Court (FISA), responsible for assuring the legality of NSA’s programs. FISA chastised the NSA for “violating its own procedures and misleading the nation’s intelligence court about how it used the telephone call logs it gathers in the hunt for terrorists.”

Despite the reprimand, in 2011 the Obama administration won permission from the FISA court to allow the NSA to “search deliberately for Americans’ communications in its massive databases.” The FISA court also extended the length of time the NSA could store intercepted US communications from five to six years.

Along with FISA court victories, the NSA is also winning “its long-running secret war on encryption.” Documents leaked by Edward Snowden show that in 2000 the NSA began spending billions of dollars to deploy “custom-built, superfast computers to break codes, and began collaborating with technology companies in the United States and abroad to build entry points into their products.” In its aggressive effort to break encryption technology, the NSA has now developed the ability to access user data from leading smart phone manufacturers, including the iPhone, as well as Android and BlackBerry devices. In addition to being able to snoop on the contact lists stored in these types of phones, leaked documents show  NSA experts boasting ‘about successful access to iPhone data in instances where the NSA is able to infiltrate the computer a person uses to sync their iPhone. Mini-programs, so-called “scripts,” then enable additional access to at least 38 iPhone features.’

Alarmed by the NSA’s war on internet encryption, both Yahoo and Microsoft have voiced concerns over the NSA’s practices, with Yahoo saying that the activities have “substantial potential for abuse.” Yahoo, Microsoft, and Google all filed legal briefs with the FISA court this Monday to disclose more information on the NSA surveillance programs. In its brief, Yahoo stated, “Yahoo has been unable to engage fully in the debate about whether the government has properly used its powers, because the government has placed a prior restraint on Yahoo’s speech.”

Rousseff: “If the facts in the report are confirmed, then it’s evident that the motive for the … espionage is not security or to fight terrorism, but economic and strategic interests.” Photo STRINGER/BRAZIL / REUTERS

Leaked documents confirming the NSA spies on its European and Latin American allies particularly upset Brazilian President Dilma Rousseff, whose own communications were bugged. Brazil is now “purchasing a new satellite, pushing bureaucrats in Brasilia to use secure email platforms and even building its own fiber-optic cable to communicate with governments in neighboring countries” to minimize the amount of data the NSA can get its eyes on. Also of concern for Brazil are yet more leaks, this time showing the NSA specifically targeted Brazil’s state-run oil company, Petrobras, in a move that Rousseff called, if confirmed, economic espionage.

According to a recent poll, both the NSA’s reputation and the government’s claim that it respects its citizen’s privacy rights aren’t holding much water after the fallout from Snowden’s leaks. However, despite public sentiment, policy solutions to surveillance problems are lagging. As Secrecy News’ Steven Aftergood reports, in past years “the House and Senate Intelligence Committees typically reported intelligence bills in late spring or early summer for House-Senate conference and floor action later in the year.” But this year, with the end of fiscal year 2013 fast approaching, an intelligence authorization bill for fiscal year 2014 is nowhere to be found.

In response to a FOIA lawsuit, the FBI disclosed a redacted document profiling the late Rolling Stone journalist Michael Hastings. The document confirms the FBI is continuing to investigate what it deems Hastings’ “controversial reporting.” Although the FBI announced shortly after Hastings’ death that the journalist was not under investigation, the document, released to Al Jazeera and MIT doctoral candidate Ryan Shapiro, shows the bureau took great interest in work Hastings was doing on U.S. soldier Bowe Bergdahl, deployed to Afghanistan and captured by the Taliban in June 2009, and still believed to be in Taliban custody.

Finally this week, Archive fellow and author of “One Minute to Midnight: Kennedy, Khrushchev, and Castro on the Brink of Nuclear War,” Michael Dobbs, penned an editorial for the Washington Post drawing parallels between the Cuban Missile Crisis and the current Syrian quagmire. According to Dobbs, Kennedy ‘had laid down a clear “red line”’ regarding Soviet missiles in Cuba. Kennedy said ‘”I should have said we don’t care…But when we said we’re not going to [tolerate it], and then they go ahead and do it, and then we do nothing… ”’ Thankfully Kennedy found a way to avoid military action and engage in back-door diplomacy. According to Dobbs, the most important lesson Obama can learn from the Cuban Missile Crisis is to slow “down the seemingly inexorable rush to war.”

Happy FOIA-ing!