Obama administration continued Bush email spy program for two years (updated x2)

The latest from The Guardian:

The Obama administration for more than two years permitted the National Security Agency to continue collecting vast amounts of records detailing the email and internet usage of Americans, according to secret documents obtained by the Guardian.

The documents indicate that under the program, launched in 2001, a federal judge sitting on the secret surveillance panel called the Fisa court would approve a bulk collection order for internet metadata “every 90 days”. A senior administration official confirmed the program, stating that it ended in 2011.

The collection of these records began under the Bush administration’s wide-ranging warrantless surveillance program, collectively known by the NSAcodename Stellar Wind.

According to a top-secret draft report by the NSA’s inspector general – published for the first time today by the Guardian – the agency began “collection of bulk internet metadata” involving “communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States”.

Eventually, the NSA gained authority to “analyze communications metadataassociated with United States persons and persons believed to be in the United States”, according to a 2007 Justice Department memo, which is marked secret.

And, although that program was stopped in 2011, a similar program replaced it.

Read the full Guardian article here and access the draft Inspector General report that lays it all out, chapter and verse.

The Guardian is also reporting the following regarding James Comey, Obama’s nominee for head of the FBI:

James Comey famously threatened to resign from the Justice Department in 2004 over the warrantless surveillance of Americans’ internet records. But once Justice Department and National Security Agency lawyers found a novel legal theory to cover the surveillance, the man Barack Obama tapped last week to lead the FBI stayed on as deputy attorney general for another year as the monitoring continued.

Update: More from The Washington Post:

A remarkable document released by The Guardian gives the public its first in-depth look at the legal process that justified the dragnet surveillance programs undertaken during President George W. Bush’s first term. And they make clear that lots of people involved in the process — government lawyers, judges, and the lawyers of private telecommunications companies — believed the Bush administration had stepped over the legal line.

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But rather than asking Congress to amend FISA, President Bush took the law into his own hands on Oct. 4, 2001. He signed an “Authorization,” drafted by vice presidential counsel David Addington, purporting to give the NSA broad authority to intercept telephone and Internet communications if at least one party to the communication was located outside the United States.

The White House Office of Legal counsel wrote a legal opinion defending the legality of wiretapping based on Bush’s Authorization. The White House refused two requests by NSA lawyers to see this document, though Addington did “read a few paragraphs of the opinion” over the phone to NSA General Counsel Robert Deitz. The NSA’s inspector general stated that he found it “strange that NSA was told to execute a secret program that everyone knew presented legal questions, without being told the underpinning legal theory.”

Update 2: And more is available from C|net:

A newly disclosed top secret document lauds the National Security Agency’s “productive” and long-standing surveillance “partnership” with a pair of telecommunications providers — that permitted tapping into their fiber links — but without naming names.

This is where things get interesting for clue sleuths.

Even in the top-secret document published by the Guardian today, the firms are described only as “Company A” and “Company B.” But the NSA’s inspector general did disclose that, at the time the program was being formed in the wake of the September 11 attacks, the agency entered into the partnerships because Company A had access to 39 percent of international phone calls, and Company B had access to 28 percent.

Those figures closely correspond with Federal Communications Commission data (PDF). The most recent figures publicly available in late 2001, when the carrier “partnerships” were being expanded, reveal that AT&T carried 38.2 percent of international minutes billed to U.S. carriers. MCI, now part of Verizon, carried 29.1 percent.

Verizon spokesman Ed McFadden would not confirm or deny his employer’s identity as company B, and told CNET today that the company “always requires appropriate legal process” when responding to requests from any government agency. AT&T did not respond to questions.

“Collection partnerships” with these two firms have allowed the spy agency to vacuum up e-mail and phone call content by tapping into their “fiber-optic cables, gateway switches, and data networks,” says the 2009 report. That’s consistent with previous reports that AT&T permitted the NSA to tap into its telecommunications facilities.

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The Guardian’s report today also cited a December 2012 document prepared by the NSA’s Special Source Operations (SSO) directorate discussing classified programs codenamed EvilOlive and ShellTrumpet, which had “processed its one-trillionth metadata record” at the time. The newspaper, which did not make the SSO document public, summarized it as:

With this new system, the NSA is able to direct more than half of the internet traffic it intercepts from its collection points into its own repositories. One end of the communications collected are inside the United States. The NSA called it the “One-End Foreign (1EF) solution”. It intended the program, codenamed EvilOlive, for “broadening the scope” of what it is able to collect….This new system, SSO stated in December, enables vastly increased collection by the NSA of Internet traffic. “The 1EF solution is allowing more than 75% of the traffic to pass through the filter,” the SSO December document reads. “This milestone not only opened the aperture of the access but allowed the possibility for more traffic to be identified, selected and forwarded to NSA repositories.”

One interpretation of EvilOlive is that the NSA is acquiring the majority of Americans’ confidential Internet and phone communications — or at least the majority flowing through the networks of its partner telecommunications companies — and archiving them for years. Any subsequent restrictions on access by intelligence analysts would be policy-based, not technology-based, and could be modified in the future to be more permissive.

The Obama administration has declined to discuss the NSA’s vast collection apparatus in any detail. A statement last week from James Clapper, the director of national intelligence, said an analyst cannot “can (sic) eavesdrop on domestic communications without proper legal authorization” — but, pointedly, did not say what “proper legal authorization” meant.

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