A PROVISION SNUCK INTO the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.
If passed, the change would expand the reach of the FBI’s already highly controversial national security letters. The FBI is currently allowed to get certain types of information with NSLs — most commonly, information about the name, address, and call data associated with a phone number or details about a bank account.
Since a 2008 Justice Department legal opinion, the FBI has not been allowed to use NSLs to demand “electronic communication transaction records,” such as email subject lines and other metadata, or URLs visited.
Senate Fails to Extend PATRIOT Act – NSA Begins Shutdown of Bulk Spying Program
The spy bill passed the Senate Intelligence Committee on Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden, D-Ore., whowrote in a statement that one of the bill’s provisions “would allow any FBI field office to demand email records without a court order, a major expansion of federal surveillance powers.”
Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.
It’s unclear how or when the provision was added, although Sens. Richard Burr, R-N.C., — the committee’s chairman — and Tom Cotton, R-Ark., have both offered bills in the past that would address what the FBI calls a gap and privacy advocates consider a serious threat to civil liberties.
“At this point, it should go without saying that the information the FBI wants to include in the statue is extremely revealing — URLs, for example, may reveal the content of a website that users have visited, their location, and so on,” Andrew Crocker, staff attorney for the Electronic Frontier Foundation, wrote in an email to The Intercept.
“And it’s particularly sneaky because this bill is debated behind closed doors,” Robyn Greene, policy counsel at the Open Technology Institute, said in an interview.
In February, FBI Director James Comey testifiedduring a Senate Intelligence Committee hearing on worldwide threats that the FBI’s inability to get email records with NSLs was a “typo” — and that fixing it was one of the FBI’s top legislative priorities.
Greene warned at the time: “Unless we push back against Comey now, before you know it, the long slow push for an [electronic communication transactional records] fix may just be unstoppable.”
Ever since, the FBI has tried to get that power and has been rejected, including during negotiations over the USA Freedom Act.
The FBI’s power to issue NSLs is actually derived from the Electronic Communications Privacy Act — a 1986 law that Congress is currently working to update to incorporate more protections for electronic communications — not fewer. The House unanimously passed the Email Privacy Act in late April, while the Senate is due to vote on its version this week.
Sen. John Cornyn, R-Texas, is expected to offer an amendment that would mirror the provision in the intelligence bill.
Privacy advocates warn that adding it to the broadly supported reform effort would backfire.
“If [the provision] is added to ECPA, it’ll kill the bill,” Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security, and technology project, wrote in an email to The Intercept. “If it passes independently, it’ll create a gaping loophole. Either way, it’s a big problem and a massive expansion of government surveillance authority.”
NSLs have a particularly controversial history. In 2008, Justice Department Inspector General Glenn Fine blasted the FBI for using NSLs supported by weak evidence and documentation to collect information on Americans, some of which “implicated the target’s First Amendment rights.”
“NSLs have a sordid history. They’ve been abused in a number of ways, including … targeting of journalists and … use to collect an essentially unbounded amount of information,” Crocker wrote.
One thing that makes them particularly easy to abuse is that recipients of NSLs are subject to a gag order that forbids them from revealing the letters’ existence to anyone, much less the public.
Update: May 26, 2016 This story has been updated to provide a comment from Wyden’s office.
FBI Director James Comey on Capitol Hill in February 2016.
CIA Director John Brennan, Sen. Dianne Feinstein. (Photo Illustration: Yahoo News; photos: AP, Reuters)
Senate report on CIA torture is one step closer to disappearing
The CIA inspector general’s office — the spy agency’s internal watchdog — has acknowledged it “mistakenly” destroyed its only copy of a mammoth Senate torture report at the same time lawyers for the Justice Department were assuring a federal judge that copies of the document were being preserved, Yahoo News has learned.
While another copy of the report exists elsewhere at the CIA, the erasure of the controversial document by the office charged with policing agency conduct has alarmed the U.S. senator who oversaw the torture investigation and reignited a behind-the-scenes battle over whether the full unabridged report should ever be released, according to multiple intelligence community sources familiar with the incident.
The deletion of the document has been portrayed by agency officials to Senate investigators as an “inadvertent” foul-up by the inspector general. In what one intelligence community source described as a series of errors straight “out of the Keystone Cops,” CIA inspector general officials deleted an uploaded computer file with the report and then accidentally destroyed a disk that also contained the document, filled with thousands of secret files about the CIA’s use of “enhanced” interrogation methods.
“It’s breathtaking that this could have happened, especially in the inspector general’s office — they’re the ones that are supposed to be providing accountability within the agency itself,” said Douglas Cox, a City University of New York School of Law professor who specializes in tracking the preservation of federal records. “It makes you wonder what was going on over there?”
The incident was privately disclosed to the Senate Intelligence Committee and the Justice Department last summer, the sources said. But the destruction of a copy of the sensitive report has never been made public. Nor was it reported to the federal judge who, at the time, was overseeing a lawsuit seeking access to the still classified document under the Freedom of Information Act, according to a review of court files in the case.
A CIA spokesman, while not publicly commenting on the circumstances of the erasure, emphasized that another unopened computer disk with the full report has been, and still is, locked in a vault at agency headquarters. “I can assure you that the CIA has retained a copy,” wrote Dean Boyd, the agency’s chief of public affairs, in an email.
The 6,700-page report, the product of years of work by the Senate Intelligence Committee, contains meticulous details, including original CIA cables and memos, on the agency’s use of waterboarding, sleep deprivation and other aggressive interrogation methods at “black site” prisons overseas. A 500-page executive summary was released in December 2014 by Democratic Sen. Dianne Feinstein, the committee’s outgoing chair. It concluded that the CIA’s interrogations were far more brutal than the agency had publicly acknowledged and produced often unreliable intelligence. The findings drew sharp dissents from Republicans on the panel and from four former CIA directors.
But the full three-volume report, which formed the basis for the executive summary, has never been released. In light of a U.S. Court of Appeals ruling last week that the document is not subject to the Freedom of Information Act, there are new questions about whether it will ever be made public, or even be preserved.
After receiving inquiries from Yahoo News, Feinstein, now the vice chair of the committee,wrote CIA Director John Brennan last Friday night asking him to “immediately” provide a new copy of the full report to the inspector general’s office.
“Your prompt response will allay my concern that this was more than an ‘accident,’” Feinstein wrote, adding that the full report includes “extensive information directly related to the IG’s ongoing oversight of the CIA.” (CIA spokesman Boyd declined to comment.)
The CIA allegedly tortured two terror suspects, Abu Zubaydah and Abd al-Rahim al-Nashiri, in its secret facility in Poland. Shown here in this 2005 photo is a watchtower near the Polish intelligence school just outside of Stare Kiejkuty, Poland.Ironically in light of the inspector general’s actions, the intelligence committee’s investigation was triggered by the CIA’s admission in 2007 that it had destroyed another key piece of evidence — hours of videotapes of the waterboarding of two “high value” detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri.
According to a brief by the American Civil Liberties Union (ACLU), which is seeking release of the full report under the Freedom of Information Act, the document “describes widespread and horrific human rights abuses by the CIA” and details the agency’s “evasions and misrepresentations” to Congress, the courts and the public.
To ensure the document was circulated widely within the government, and to preserve it for future declassification, Feinstein, in her closing days as chair, instructed that computer disks containing the full report be sent to the CIA and its inspector general, as well as the other U.S. intelligence and law enforcement agencies. Aides said Feinstein specifically included a separate copy for the CIA inspector general because she wanted the office to undertake a full review. Her goal, as she wrote at the time, was to ensure “that the system of detention and interrogation described in this report is never repeated.”
But her successor, Republican Sen. Richard Burr of North Carolina, quickly asked for all of the disks to be returned, even threatening at one point to send a committee security officer to retrieve them. He contended the volumes are congressional records that were never intended for executive branch, much less public, distribution.
The administration, while not complying with Burr’s demand to return the disks, has essentially sided with him against releasing them to the public. Early last year, Justice lawyers instructed federal agencies to keep their copies of the document under lock and key, unopened, lest the courts treat them as government records subject to the Freedom of Information Act. Weeks later, in an effort to head off a motion for “emergency relief” by the ACLU, a Justice Department lawyer told U.S. Judge James Boasberg that no copies of the report would be returned to Congress or destroyed; the government “can assure the Court that it will preserve the status quo” until the Freedom of Information Act lawsuit was resolved, wrote Vesper Mei, a senior counsel in the Justice Department’s civil division, in a February 2015 filing.
But last August, a chagrined Christopher R. Sharpley, the CIA’s acting inspector general, alerted the Senate intelligence panel that his office’s copy of the report had vanished. According to sources familiar with Sharpley’s account, he explained it this way: When it received its disk, the inspector general’s office uploaded the contents onto its internal classified computer system and destroyed the disk in what Sharpley described as “the normal course of business.” Meanwhile someone in the IG office interpreted the Justice Department’s instructions not to open the file to mean it should be deleted from the server — so that both the original and the copy were gone.
At some point, it is not clear when, after being informed by CIA general counsel Caroline Krass that the Justice Department wanted all copies of the document preserved, officials in the inspector general’s office undertook a search to find its copy of the report. They discovered, “S***, we don’t have one,” said one of the sources briefed on Sharpley’s account.
Sharpley was apologetic about the destruction and promised to ask CIA director Brennan for another copy. But as of last week, he seems not to have received it; after Yahoo News began asking about the matter, he called intelligence committee staffers to ask if he could get a new copy from them.
Sharpley also told Senate committee aides he had reported the destruction of the disk to the CIA’s general counsel’s office, and Krass passed that information along to the Justice Department. But there is no record in court filings that department lawyers ever informed the judge overseeing the case that the inspector general’s office had destroyed its copy of the report.
The episode was viewed among intelligence committee aides as another embarrassment for the inspector general’s office. Months earlier, a CIA accountability board had overruled the IG’s findings that agency officials had improperly searched computers used by Senate investigators working on the report. Sharpley has been serving as acting inspector general since his predecessor, David Buckley, resigned in January 2015. The White House has yet to nominate a successor.
A Justice Department spokesman said on Friday that, since the inspector general’s office is, by statute, a “unit” of the CIA, and the agency still had its copy, “the status quo … was preserved.” But Feinstein, in a separate letter to Attorney General Loretta Lynch last Friday, took a different view: She asked that the Justice Department “notify the federal courts” involved in the Freedom of Information Act litigation about the destruction.
At issue in the ongoing legal dispute is whether the report is subject to the Freedom of Information Act (FOIA). The administration says no, and a three-judge panel of the U.S. Court of Appeals last week agreed, ruling that it is a congressional document not subject to FOIA, under the terms of a 2009 letter by which the Senate panel had received access to CIA files. The judges did write, however, that the executive branch does have “some discretion to use the full report for internal purposes.” The ACLU said on Friday it was “considering our options for appeal”; CIA spokesman Boyd said the agency’s copy of the report would be retained “pending the final result of the litigation.” But he pointedly made no mention of what would happen to the CIA’s copy of the report after that.
In a letter last month, the senators expressed concerns that federal agencies might destroy their copies of the report. “No part of the executive branch has ruled out destroying or sending back the full report to Congress after the conclusion of the current FOIA litigation,” they wrote in an April 13, 2016, letter. A similar point was raised by more than 30 advocacy groups who noted in a separate letter to Ferriero last month that the archivist had a duty to act whenever there was a threat that government records are at risk of “unauthorized destruction.”
Ferriero on April 29 wrote back to Feinstein that he would not rule on the question until the FOIA court case is concluded. And last week, Burr renewed his call to have all copies of the report sent back — presumably a way to ensure they are never publicly released. Citing the new Court of Appeals ruling, “Sen. Burr anticipates the return of these full reports to the Senate Intelligence Committee,” a spokeswoman said.
On Thursday, the Transportation Security Administration chief administrator claimed before the House Oversight and Government Reform Committee that the agency is no longer going after whistleblowers.
While testifying on Thursday morning, the TSA’s Peter Neffenger asserted that the agency has made great strides against the controversial retaliation since he took over in July of last year. Many whistleblowers had previously come forward stating that employees who dared to question or report fraud and abuse would be reassigned against their will or forced into early retirement.
“I discontinued directed reassignments explicitly,” Neffenger told the committee. “I don’t tolerate that. It’s illegal, unethical and most of those people doing directed reassignments no longer work at the agency.”
He claimed that employees are now encouraged to come forward with their concerns, and can speak with him directly instead of going through other channels.
“So if there are people watching this at TSA who feel they are being wrongfully retaliated against, you’re saying you have an open door?” Representative Elijah E. Cummings asked.
“They can come directly to me,” Neffenger replied.
Neffenger was brought to lead the agency one month after auditors were able to smuggle fake weapons and explosives past screeners 67 out 70 times during testing.
The TSA chief explained that he found “systematic problems” with the training of agents and their use of the equipment when he first took over, and forced all employees to go through a two month long retraining — including some of the highest level senior management.
Many Republican lawmakers favor privatizing the agency, while many Democrats, including President Barack Obama, are calling for it to remain a government agency — and for Congress to approve more funding.
“Certainly some of the challenges that they’re facing right now could be alleviated if they got all of the funding that we would like to see them have,” White House spokesman Josh Earnest said on Wednesday. “So once again, a problem that people have noticed can be traced back pretty directly to the inability of Republicans in Congress to govern the country.”
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