In the wake of AP reporting on NYPD-CIA domestic surveillance, the NSA leadership provided incomplete denials about NSA capability to monitor email content and authorship.
James Bamford in Wired discussed an NSA domestic interception capability. However, NSA provided an unsatisfactory response, incompletely denying there existed a domestic interception capability related to email content and authorship.
NSA's recent public statements before Congress could be admitted as an incomplete denial, re-opening the door to litigation against the NSA or other government agencies and contractors related to unlawful breaches of FISA.
Further, these incomplete denials appear to be public statements by a US government official related to new activity, opening the door to lawful litigation against the NSA related to NSA policies, programs, and activity not fully shielded by the 2008 FISA Immunity Act.
As discussed in this diary, James Bamford in Wired reported on a domestic interception-storage facility. Later, Wired ran a another story on the Congressional review of the Bamford's claims, where NSA's Gen Alexandar responded.
Incomplete Denial re Email Content, Author
Congressman Hank Johnson, a Georgia Democrat, asked Alexander whether the NSA could, at the direction of Dick Cheney, identify people who sent e-mails making fun of his inability to hunt in order to waterboard them.
Alexander said “No,” adding that the “NSA does not have the ability to do that in the United States.”
Source
NSA's Alexandar is parsing his words and his denial isn't absolute, but qualified: NSA hasn't absolutely denied that it has a capability; only denied that that capability exists
in the United States, leaving open the option for other possibilities to collect, store, monitor, and review (a) email content and (b) email authors.
The 2008 FISA Immunity Act derailed investigations of the US Government's domestic interception program. However, the Immunity Act does not absolutely prevent investigation of subsequent disclosures related to domestic interception programs which fall outside the narrow protections of the Act.
Yet, the NSA (incomplete) public denials of this capability are not consistent with DOJ legal action intended to punish disclosure of relevant privacy protections.
Email Content Monitoring Capability Required to Monitor Fiber Optic Communication
One statement from this Fiber Optic Standard stands out:
NSA Interest Area
"For the Agency, this means that a very high bandwidth network will be commercially available to interconnect almost all computers within two years."
Source
That is consistent with Alexandar's assertion that the NSA does not "own" or "operate" any of the equipment:
Contractor's do.
A. Parsing Inconsistent With Technical Requirements
A second way of looking at the statement is whether the NSA does have the capability to identify people who sent emails related to content. NSA would like to leave the impression that there is no domestic email surveillance capability against American citizens' email content or authorship.
B. Parsing Over Interception Technical Capability, Requirements
NSA's implicit suggestions contradict how communications move through fiber optic lines. A fiber optic bundle contains at least two (2) fiber optic wires: One fiber optic wire for outbound information; and a second one for incoming information.
For anyone to monitor a communication sent through fiber optic lines, the US government would have to be able to intercept information sent along both the incoming and outgoing lines; then have another method to integrate those signals within a single communication transcript.
C. Parsing over Which Entity Monitors Email Content, Author
When information is sent via fiber optic lines, the NSA -- or it's contractors -- would have to have a technical method to intercept, collect, and retain information from Americans. To intercept communication sent through Fiber Optic lines, the interception would have to be of two lines within a single bundle.
D. Parsing over Connection to United States
For NSA to monitor any "foreign" communications with a domestic target, NSA has to have the capability to intercept/access/monitor the communication from the outbound fiber optic line from the United States.
E. Parsing Related to Collection Entity/Location
That interception capability may not necessarily be in the United States: It could be floating above the United States as a satellite, or located offshore. But this parsing doesn't account for domestic contractors working for the NSA. Indeed, NSA doesn't "own" a contractor.
Domestic Email Content Monitoring to Investigate Hacking Attack on NASDAQ
However, the NSA suggestion is inconsistent with disclosures NSA was involved with monitoring how NSDAQ -- a domestic stock trading entity -- was supposedly hacked.
Something the the US government reviewed was domestic: Signals identifying who coordinated the hacking attack. That would require an ability to identify names and content of those coordinating the attack.
Disclosures of Domestic Email Monitoring/Privacy Subject of NSA Prosecution re Drake
NSA prosecuted Drake for disclosing information related to NSA programs involved with privacy protections. If NSA's statement's are true -- that there is no NSA domestic interception capability of email content -- NSA would not have litigated over disclosures related to privacy protections; nor would Drake have been prosecuted for disclosing information about the related NSA programs.
It makes no sense to believe NSA's denials when DOJ attempted to punish Drake for allegedly disclosing details related to privacy protections on NSA programs. However, privacy protections would be required when the NSA has a domestic interception capability, contrary to the NSA Commanader's denials before Congress.
From the sentencing transcript, it's clear that the government doesn't look favorably upon what Drake did:
Welch, DOJ: Certainly from the government's perspective, I don't think that Mr. Drake would do this again; and secondly, he won't have the opportunity to do it again because I don't think he would ever get a job within the intelligence community again.
THE COURT: He'll never get a job with the federal government again.
Source
The Drake prosecution result is inconsistent with the NSA's current denials re Bamford.
Using NSA "logic," Drake 'can't' get a job with the Federal government because -- supposedly according to the NSA in 2012 -- he disclosed information about privacy protections related to a capability the NSA 'doesn't' have.
It defies reason for DOJ to have expended resources to prosecute someone for "supposedly" disclosing information related to privacy protections within NSA interception capabilities, unless those disclosures were related to a factual disclosure of an NSA capability.
Whether that NSA capability is or isn't lawful escapes (some) scrutiny once NSA denies that (dubious) capability exists: Whether there were or were not adequate privacy protections on email content, which the NSA developed programs to intercept, store, retain, and analyze.
Yet, the court accepted the indictment presumably because NSA does have a capability which Drake knew about: The NSA interception capabilities did not adequately comply with privacy protections afforded to Americans.
It makes no sense for Drake to have plead guilty to a crime related to disclosing information about a capability which the NSA would have us believe doesn't exist:
Mr. Drake pled guilty to the crime of exceeding the authorized
use of a government computer.
Source
It makes no sense for NSA to retain interception capabilities against Americans outside the United States unless those interception technologies existed only offshore or in space. However, that does not deny absolutely that the capability exists
somewhere.
Indeed, the final analysis of that email content might lie with a contractor working for ODNI, not NSA. Indeed, NSA's denial before Congress hardly amounts to an absolute denial.
Rather, the US government and it's contractors do have some capability to retain, review, monitor, and develop opposing public media messages related to political content within private emails.
Email Content, Authorship Monitoring to Disseminate Domestic Media Messages
If this capability (supposedly) does "not exist," the Congress cannot explain why media relations firms are paid to provide media messages to sway public opinion. Indeed, whether those subsequent US government-connected public media messages do or do not comply with the Smith Act remains a matter of public review.
It's unlikely NSA will give a satisfactory public response about why it attempted to prosecute someone for disclosing details about a program which the NSA would have us believe has no capability to perform. Where there's a government lawsuit, there should be a national interest to protect.
NSA asserts power to prevent disclosure about capabilities, mismanagement, and questionable government activity which violates the Constitution.
One question is whether Congressional Staffers provided NSA leadership with promises of transactional, prosecutorial, and legislative immunity in exchange for providing alleged misleading public statements about the US government's SIGINT capability.
Conclusion
The incomplete NSA denials about domestic email content monitoring add additional information to the questions related to the CIA-NYPD domestic surveillance programs: How the NYPD worked with CIA, NSA, and ODNI to collect information; and the tools NSA provided to the NYPD to target American citizens not just New Yorkers.
We believe a legal challenge to the NSA domestic surveillance capability might fall outside the 2008 FISA Immunity Act because these statements are not isolated to the NSA's domestic interception program.
Rather, NSA's recent disclosures relate to a new activity, not adequately incorporated within the expansive protection of the FISA Immunity Act. It is foreseeable that the NYPD-CIA surveillance could be subject to litigation outside the FISA immunity Act, creating a current evidence retention requirement for NYPD-CIA-ODNI-NSA communications related to monitoring email content and authors.
Further, the NSA incomplete denials draw attention to which contractors are given access to private email content to publish and disseminate public media messages, possibly in breach of the Smith Act.
Editorial
The NSA Commander's public statements tend to undermine public confidence in the accuracy, reliability, and credibility of the NSA's statements to Congress and the public.
NSA's public statements are part of a weakly executed public disinformation campaign, and attract more attention to what the NSA is really doing.
Except for pointed questions by Congress Hank Johnson, Congress lacks serious interest in challenging unconstitutional activity which Members of Congress and Congressional Staff legal counsel are allegedly complicit.
For the most part, Congress and the NSA agree it's acceptable monitor the American public using questionable, unlawful, and dubious methods which do not adequately remain within the contours of the existing Constitution.
An inadequate challenge to these statements raises questions about Members of Congress commitment to their oath of office to defend the Constitution against domestic enemies. A sworn statement before Congress (still) doesn't mean much.
Congress and NSA should not be immune from the oversight of We the People, the source of power NSA and Congress are complicit in abusing.
It remains unclear what other unlawful methods the NSA, Congress and US government will use to thwart public oversight of unconstitutional US government activity.
The public needs to have an informed debate: What mechanisms and tools, in addition to voting, will lawfully oversee, regulate, and monitor Congress, contractors and the US government; and do these changes require a change in the Constitution.
We believe those changes -- in the form of a new Constitution, outside the Amendment process -- can be lawfully and peacefully imposed on the US government without it's approval.
The NSA should be commended for drawing attention to needed modernizations of the Constitutional reforms to better defend the established order from domestic enemies with the ranks of Congress, the intelligence community, and law enforcement.