Editor’s Note – Have you ever taken a call on your mobile phone and walked away from others seeking privacy in the call? Do you send text messages to unknown people and tell them your medical condition? Do you from time to time clear your internet cache and cookies to clear your computer of historical and unwanted tracks?
Sure everyone wants some sense of privacy and you expect that what you do in your own home should not be in the hands of others without your knowledge or approval, but that is NO longer reasonable or true. You have not only lost ANY privacy but your data travels the globe even to other countries, they know you but you don’t know them.
You may be doing anything in a private manner, so you think, but there are in fact others that are nothing more than peeping Toms who are capturing everything you do, whether it is acceptable, explicit, or just plain personal. This is all done without you being aware, much less with your permission.
We have been forced into a Constitutional crisis and it is time you learn the risks and fight back. Suppose you make a call to a crisis line for a gambling habit or call your bank to transfer money to a friend in need in another country. That meta-data is all collected by the NSA and with that data, an unknown intelligence analyst can construe any scenario about your activities without notifying you.
Maybe it can be used in a divorce proceeding, or as cause to seek a warrant based on your history that they construe into making you a suspect in a criminal case you had no knowledge of. Think about it – they have evidence they can do anything with, including making up something to ruin a political ambition, or get you fired.
When you data is in the hands of people in a foreign nation that does not observe our laws, or has less stringent laws, how safe is your data?
NSA shares raw intelligence including Americans’ data with Israel
The National Security Agency routinely shares raw intelligence data with Israel without first sifting it to remove information about US citizens, a top-secret document provided to the Guardian by whistleblower Edward Snowden reveals.
Details of the intelligence-sharing agreement are laid out in a memorandum of understanding between the NSA and its Israeli counterpart that shows the US government handed over intercepted communications likely to contain phone calls and emails of American citizens. The agreement places no legally binding limits on the use of the data by the Israelis.
The disclosure that the NSA agreed to provide raw intelligence data to a foreign country contrasts with assurances from the Obama administration that there are rigorous safeguards to protect the privacy of US citizens caught in the dragnet. The intelligence community calls this process “minimization”, but the memorandum makes clear that the information shared with the Israelis would be in its pre-minimized state.
The deal was reached in principle in March 2009, according to the undated memorandum, which lays out the ground rules for the intelligence sharing.
The five-page memorandum, termed an agreement between the US and Israeli intelligence agencies “pertaining to the protection of US persons”, repeatedly stresses the constitutional rights of Americans to privacy and the need for Israeli intelligence staff to respect these rights.
But this is undermined by the disclosure that Israel is allowed to receive “raw Sigint” – signal intelligence. The memorandum says: “Raw Sigint includes, but is not limited to, unevaluated and unminimized transcripts, gists, facsimiles, telex, voice and Digital Network Intelligence metadata and content.”
According to the agreement, the intelligence being shared would not be filtered in advance by NSA analysts to remove US communications. “NSA routinely sends ISNU [the Israeli Sigint National Unit] minimized and unminimized raw collection”, it says.
Although the memorandum is explicit in saying the material had to be handled in accordance with US law, and that the Israelis agreed not to deliberately target Americans identified in the data, these rules are not backed up by legal obligations.
“This agreement is not intended to create any legally enforceable rights and shall not be construed to be either an international agreement or a legally binding instrument according to international law,” the document says.
In a statement to the Guardian, an NSA spokesperson did not deny that personal data about Americans was included in raw intelligence data shared with the Israelis. But the agency insisted that the shared intelligence complied with all rules governing privacy.
“Any US person information that is acquired as a result of NSA’s surveillance activities is handled under procedures that are designed to protect privacy rights,” the spokesperson said.
The NSA declined to answer specific questions about the agreement, including whether permission had been sought from the Foreign Intelligence Surveillance (Fisa) court for handing over such material.
The memorandum of understanding, which the Guardian is publishing in full, allows Israel to retain “any files containing the identities of US persons” for up to a year. The agreement requests only that the Israelis should consult the NSA’s special liaison adviser when such data is found.
Notably, a much stricter rule was set for US government communications found in the raw intelligence. The Israelis were required to “destroy upon recognition” any communication “that is either to or from an official of the US government”. Such communications included those of “officials of the executive branch (including the White House, cabinet departments, and independent agencies), the US House of Representatives and Senate (member and staff) and the US federal court system (including, but not limited to, the supreme court)”.
It is not clear whether any communications involving members of US Congress or the federal courts have been included in the raw data provided by the NSA, nor is it clear how or why the NSA would be in possession of such communications. In 2009, however, the New York Times reported on “the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip”.
The NSA is required by law to target only non-US persons without an individual warrant, but it can collect the content and metadata of Americans’ emails and calls without a warrant when such communication is with a foreign target. US persons are defined in surveillance legislation as US citizens, permanent residents and anyone located on US soil at the time of the interception, unless it has been positively established that they are not a citizen or permanent resident.
Moreover, with much of the world’s internet traffic passing through US networks, large numbers of purely domestic communications also get scooped up incidentally by the agency’s surveillance programs.
The document mentions only one check carried out by the NSA on the raw intelligence, saying the agency will “regularly review a sample of files transferred to ISNU to validate the absence of US persons’ identities”. It also requests that the Israelis limit access only to personnel with a “strict need to know”.
Israeli intelligence is allowed “to disseminate foreign intelligence information concerning US persons derived from raw Sigint by NSA” on condition that it does so “in a manner that does not identify the US person”. The agreement also allows Israel to release US person identities to “outside parties, including all INSU customers” with the NSA’s written permission.
Although Israel is one of America’s closest allies, it is not one of the inner core of countries involved in surveillance sharing with the US – Britain, Australia, Canada and New Zealand. This group is collectively known as Five Eyes.
The relationship between the US and Israel has been strained at times, both diplomatically and in terms of intelligence. In the top-secret 2013 intelligence community budget request, details of which were disclosed by the Washington Post, Israel is identified alongside Iran and China as a target for US cyberattacks.
While NSA documents tout the mutually beneficial relationship of Sigint sharing, another report, marked top secret and dated September 2007, states that the relationship, while central to US strategy, has become overwhelmingly one-sided in favor of Israel.
“Balancing the Sigint exchange equally between US and Israeli needs has been a constant challenge,” states the report, titled ‘History of the US – Israel Sigint Relationship, Post-1992’. “In the last decade, it arguably tilted heavily in favor of Israeli security concerns. 9/11 came, and went, with NSA’s only true Third Party [counter-terrorism] relationship being driven almost totally by the needs of the partner.”
In another top-secret document seen by the Guardian, dated 2008, a senior NSA official points out that Israel aggressively spies on the US. “On the one hand, the Israelis are extraordinarily good Sigint partners for us, but on the other, they target us to learn our positions on Middle East problems,” the official says. “A NIE [National Intelligence Estimate] ranked them as the third most aggressive intelligence service against the US.”
Later in the document, the official is quoted as saying: “One of NSA’s biggest threats is actually from friendly intelligence services, like Israel. There are parameters on what NSA shares with them, but the exchange is so robust, we sometimes share more than we intended.”
The memorandum of understanding also contains hints that there had been tensions in the intelligence-sharing relationship with Israel. At a meeting in March 2009 between the two agencies, according to the document, it was agreed that the sharing of raw data required a new framework and further training for Israeli personnel to protect US person information.
It is not clear whether or not this was because there had been problems up to that point in the handling of intelligence that was found to contain Americans’ data.
However, an earlier US document obtained by Snowden, which discusses co-operating on a military intelligence program, bluntly lists under the cons: “Trust issues which revolve around previous ISR [Israel] operations.”
The Guardian asked the Obama administration how many times US data had been found in the raw intelligence, either by the Israelis or when the NSA reviewed a sample of the files, but officials declined to provide this information. Nor would they disclose how many other countries the NSA shared raw data with, or whether the Fisa court, which is meant to oversee NSA surveillance programs and the procedures to handle US information, had signed off the agreement with Israel.
In its statement, the NSA said: “We are not going to comment on any specific information sharing arrangements, or the authority under which any such information is collected. The fact that intelligence services work together under specific and regulated conditions mutually strengthens the security of both nations.
“NSA cannot, however, use these relationships to circumvent US legal restrictions. Whenever we share intelligence information, we comply with all applicable rules, including the rules to protect US persn information.”
In fact the NSA is so out of control with limitations that a Federal Judge almost shut down the whole program. Who is to really blame for the NSA surveillance program operating without restrictions? One must point to Barack Obama himself.
As Edward Snowden, the previous NSA employee has exposed over the last several months just what the NSA has in its possession. There are several organizations that have stepped up to protect our Constitutional rights at least as it relates to warrantless wiretaps and illegal search and seizures. Once such lawsuit relates to not only two clauses in the Patriot Act but the law now under scrutiny The Foreign Intelligence Services Act.
The Director of National Intelligence (DNI) just today released hundreds of pages of documents related to the government’s secret interpretation of Patriot Act Section 215 and the NSA’s (mis)use of its massive database of every American’s phone records. The documents were released as a result of EFF’s ongoing Freedom of Information Act lawsuit.
We’ve posted links to each document below. While the government also posted many of the documents here, our copies are completely searchable.
Our legal team is currently poring over them and will have much more analysis soon, but intelligence officials held a call with reporters about the content of the documents this morning, and made several revealing comments.
First, intelligence officials said they were releasing this information in response to the presidential directive on transparency surrounding the NSA. That statement is misleading. They are releasing this information because a court ordered them to as part of EFF’s Freedom of Information Act lawsuit, filed almost two years ago on the tenth anniversary of the Patriot Act.
In fact, up until the Snowden revelations started a couple months ago, the government was fighting tooth and nail to not only avoid releasing the content of the government’s secret interpretation of the Patriot Act, but even the number of pages that were involved. The government argued releasing a single word of today’s release would cause “serious and exceptionally grave damage to the national security of the United States.”
As it’s been clear to us and to an increasing percentage of the American public, making public how the government interprets our laws is not only NOT dangerous, but vital to our democracy.
Second, at least some of the documents relate to a “compliance issue” that was referenced in another FISA court opinion from 2011 that found some NSA surveillance unconstitutional, which released a few weeks ago as part of another EFF FOIA lawsuit.
According to intelligence officials, this FISA court opinion focuses on the NSA’s use of an “alert list” which is a list of “phone numbers of interest” that they queried every day as new data came into their phone records database. The court had told the NSA they were only allowed to query numbers that had “reasonable articulable suspicion (RAS)” of being involved in terrorism. Apparently, out of the more than 17,000 numbers on this list in 2009, the NSA only had RAS for 1,800 of them.
The NSA apparently believed that it had the authority to search the telephone records database in order to obtain the ‘reasonable articulable suspicion’ required to investigate those numbers. Essentially, they were conducting suspicionless searches to obtain the suspicion the FISA court required to conduct searches.
Incredibly, intelligence officials said today that no one at the NSA fully understood how its own surveillance system worked at the time so they could not adequately explain it to the court. This is a breathtaking admission: the NSA’s surveillance apparatus, for years, was so complex and compartmentalized that no single person could comprehend it.
The intelligence officials also acknowledged that the court has to base its decisions on the information the NSA gives it, which has never been a good basis for the checks and balances that is a hallmark of American democracy.
We also had hoped today’s release would contain a 2006 opinion describing how the FISA court re-interpreted the word “relevant” to mean the NSA could collect information on hundreds of millions of innocent Americans who had never been involved in an investigation of wrong doing. We don’t see that opinion in today’s release, but expect to get it soon.
As we stated, we’ll have much more on this soon.
Links to the documents:
- – May 24, 2006 — Order from the Foreign Intelligence Surveillance Court
- – December 12, 2008 — Supplemental Opinion from the Foreign Intelligence Surveillance Court
- – January 28, 2009 — Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009 from the Foreign Intelligence Surveillance Court
- – January 28, 2009 — Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009 from the Foreign Intelligence Surveillance Court – With Cover Letter and Attached Declarations
- – February 26, 2009 — Notice of Compliance Incident
- – March 2, 2009 — Order from the Foreign Intelligence Court
- – June 22, 2009 — Order from the Foreign Intelligence Court
- – June 25, 2009 — Implementation of the Foreign Intelligence Surveillance Court Authorized Business Records FISA
- – August 19, 2009 — Report of the United States with Attachments and Cover Letter
- – September 3, 2009 — Primary Order from the Foreign Intelligence Surveillance Court
- – September 25, 2009 — Order Regarding Further Compliance Incidence from the Foreign Intelligence Surveillance Court
- – November 5, 2009 — Supplemental Opinion and Order from the Foreign Intelligence Surveillance Court