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Who, What, Where, and Why: The FBI/NSA Mass Surveillance Collaboration

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Dragnet surveillance: Need to make a bust? Doesn’t matter for what. Just listen in!

That pretty much sums up what could soon become the status quo for law enforcement in America.

Executive action by the Obama administration is expected to authorize direct sharing of information collected by the NSA with the FBI. In other words, the FBI will be able to directly access unfiltered streams of NSA data. It will basically allow the NSA to spy for local cops.

Under the proposed rule changes, federal agencies such as the FBI would gain direct access to streams of information gathered by the NSA, including emails, phone calls and location data. They would then be free to pass along this information to state and local law enforcement.

NSA spying is always justified on the grounds of ” fighting terrorism.” But this warrantless information sharing will not be limited to terrorism investigations. In fact, it will almost certainly primarily involve regular criminal investigations.

Spying within the United States border was considered off-limits to the NSA and other federal intelligence agencies at one time. The FBI was the sole agency authorized to investigate U.S. citizens. But it too is an intelligence agency with investigative powers.

As years have gone by, “National Security” has become a massive directive dedicated to information sharing and spying on U.S. citizens, but both the FBI and other federal intelligence agencies. Again, very little of this surveillance has anything to do with terrorism. Radley Balko, a writer for the Washington Post, documents how warrantless surveillance has been used to investigate everyday domestic crimes instead of terrorism. He shows how the government covers up surveillance through parallel construction, shares information with non-intelligence agencies like the IRS, and evades public scrutiny through use of the non-disclosure acts.

Still, arguments both inside and outside the government defend mass surveillance because they say it will defend against terrorism. Radley Balko, the ACLU, EFF, and many others have thoroughly rebuffed that myth, showing a minority of cases involving warrantless surveillance actually have anything to do with terrorism cases. In fact, less than 1 percent of surveillance information acquired through the Patriot Act was for terrorism. Just as one example, Sneak and Peak warrants that allow police to enter homes and poke around without the resident’s knowledge were used as an “everyday investigative tool” rather than for the highest of high crimes.

Before we buy into the “we have to let the FBI have access to all of this NSA data,” and shrug our shoulders at yet another expansion of the U.S. surveillance state, let’s look at what is already on the books. Is this expansion of information sharing really necessary to fight terrorism? No! Surveillance practices based on executive orders and laws already in place enable the FBI to fight terrorism.

Orders and Acts that Enable Counter-Terrorism through Mass Surveillance
National Security Act of 1947

  • Identifies the FBI as an intelligence agency.
  • Allows for the FBI to award personal service contracts.

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  • Outlines each agencies’ goals, granted powers, spying restrictions in and outside of the US, and on citizen, resident or foreigner.
  • Federal intelligence agencies may spy within the US if they seek coordination with the FBI.
  • FBI authorized to conduct counter-intel within the US.
  • Restricts FBI counterintelligence on military/civilian personnel without DoD coordination
  • Restricts Signals Intelligence to the DoD unless authorized by the SecDef.
  • Tasks FBI with collection of foreign intelligence when tasked by POTUS.
  • Authorizes surveillance on narcotics activity.
  • Can only develop systems and devices to support what is written in this section of the Patriot Act.

Patriot Act Section 215

  • FBI authorized to applies for a secret order (National Security Law) to required production of tangible things.
  • Order forbids disclosure of purposes of an investigation under Section 215, (Sneak and Peak)

EFF has reported on a FOIA document about a Secret interpretation of the Patriot Act. Even though the Patriot Act outlines intelligence collection abroad, Section 215 has been used to authorize gathering intelligence within the U.S. on U.S. citizens. It also negates the Fourth Amendment’s requirement for a warrant based on probable cause, but rather, evidence that could be of some use in an investigation.

USA Freedom Act Amendments to the FISA Act and Restoration of Powers Lost from Provisions Expired from the Patriot Act

  • Patriot act provision that expired was bulk collection of American’s communications metadata.
  • Instead it requires a specific selection term to be used for tangible things sought from a National Security Letter (NSL). The tangible things sought or obtained must show reasonable articulable suspicion that connect the tangible thing to the obtain tangible things.
  • Requires call details records to have a selector term.
  • An agent of a foreign power is no longer just relegated to a person outside of the U.S. Acts of this person include events that have not happened, or when knowingly aids or abets another person for a clandestine activity for a foreign government.

EFF also lists the ways the NSA has used Section 702 to justify mass surveillance on American citizens. Section 702 has been used to shared information for ordinary crimes.

Expectations of FBI and NSA Coordination

As surveillance executive orders and laws become the norm, the amount of hay in the proverbial haystack has increased. That makes the needle harder to find. Intelligence analysts have a harder time pinpointing terrorism crimes within the sheer amount of data now available. However, knowledge of everyday domestic crimes has increased. What can we expect from the FBI and NSA directly sharing info? It isn’t clear as to what the president’s plans for direct sharing between FBI and the NSA are yet, but here is what we do know.

Information Sharing Inhibitors
NSA can already contact the POTUS to task the FBI to follow up on intelligence already gathered. We know this is true from parallel construction leaks. We also know that the POTUS didn’t want to be the man in the middle delivering intelligence from one agency to another, so the policy was changed to allow the heads of intelligence agencies to do it directly when George W. Bush issued executive order 13388.

So, is there still must be a problem with noncooperation between agencies? Probably not. Since 9/11 information sharing is usually to blame when we have any type of intelligence failures, but executive orders and laws should have solved that. Also, DEA and IRS already have access to the NSA data. So this probably isn’t the problem

Along with executive order 13388, President Obama encourages sharing between intelligence communities and even private industry. (See here here here and here) Sharing data is not restricted to only intelligence agencies. It is even accessible through private industries. We no longer live in the days of prior to Mark Klein’s revelations. This is now assumed to happen in every company – not just AT&T.

Oversight
We also know secret interpretations of the Patriot Act were used to circumvent both oversight and the warrant clause. As a result, intentional or accidental intelligence collection of U.S. persons within the U.S. have occurred. So, it’s clearly not the result in too much oversight or hurdles.

Even Edward Snowden said that FBI had access to the NSA data for routine crimes.

So What Is This Really All About?

I speculate that the FBI/NSA cooperation is about maintaining PRISM. It will enable the continuation of mass surveillance for lesser crimes than terrorism. No matter what happens, and something is about to happen. Section 702 of the FISA Act is scheduled for sunset in 2017. This is the section, as the EFF has reported, that the FISA court has been convinced that any tangible item relevant to an investigation is fair game if it relates to foreign affairs of the U.S. By continuing this coordination between FBI and NSA, The move would keep the channel open just in case privacy advocates can pressure Congress enough to allow Sec. 702 to sunset, as they did to end other provisions in the Patriot Act. While the POTUS has not finalized the cooperation agreement, it is anticipated it will not include privacy protections.

Will it end with just the FBI? No, local police have been set up as satellite intelligence agencies for federal law enforcement. The 1033 program has helped local and state law enforcement with technology used for surveillance. Most of what they do requires cooperation between local, state and federal agencies. We can stop it at the state level and take #CTRL of your privacy.

This time, let’s learn our lesson from the USA Freedom Act debacle, introduce state legislation instead.

Mike Maharrey contributed to this article.

Image by KissMyGrandmother – Flickr, under a CreativeCommons 2.0 license.