What Was the Data Mining Dispute About?

As long as Jeralyn, Orin Kerr and Marty Lederman are speculating about what the legal dispute was that triggered the 2004 Comey crisis, I am going to throw my 2 cents in too. I think a thorough review of the original Times article, and the most recent article lead us to a reasonable speculation - that it was NOT the data mining itself that was objectionable but the use of the data mining results. Lederman writes:

[T]he most likely possibility -- the legal problem wasn't the data mining itself, but instead that the uses of the data that were mined violated FISA. The Times story hints at this -- that perhaps it was not so much the data mining itself, but instead what what NSA did with the mined data, that caused the legal uproar: "Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used." . . .

Indeed, and I think we can trace where these concerns first started:

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it. . . . A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials.

The Judge's concerns, I speculate, led to a wholesale review by Comey and others and they came to conclude the program did not pass legal muster. More.

Now consider Bush's description of the program he "confirmed":

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.
Of course this must have been AFTER the program was revamped. As Lederman surmises:

This data-mining indicated that it might be valuable to do more targeted searches of particular communications "pipelines" (John Yoo's phrase), looking for more specific information. But that's where FISA came in. In order to target a particular U.S. person, or to wiretap a particular "facility," FISA requires that the NSA demonstrate to the FISA court probable cause to believe (i) that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. 50 U.S.C. 1805(a)(3).

Perhaps, as John Yoo suggests in his book, FISA would have prohibited following up on the leads revealed by the data mining with more targeted wiretaps of suspicious "channels" or "pipelines," "because we would have no specific al Qaeda suspects, and thus no probable cause."

I think what happened is that the data mining revealed something that the NSA, with DOJ's blessing, followed up on, perhaps using quite long and attenuated "connections" (e.g., phone calls and e-mails three degrees of separation removed) -- what Risen and Lichtblau's original story referred to as "an expanding chain" -- and this follow-up surveillance involved purely domestic communications, as well as communications of persons for whom there was no probable cause to believe they were Al Qaeda agents. Further speculation, with links to plenty of other bloggers, here.) If this is corerct, then it was the follow-up surveillance, not the data mining, that was the legal problem -- it didn't satisfy FISA because whatever it was NSA learned from the data mining, it was something far short of probable cause that all the subsequent targets were agents of Al Qaeda. And OLC concluded that Article II did not justify disregarding FISA.

(Emphasis supplied.) I think this sounds so plausible that I predict this is what the legal problem was. I think the best evidence of this is that the review was spurred by complaints from the FISA court itself. The problem was using probably legal data mining techniques to bootstrap FISA surveillance.

BTW, this really would make Gonzales' perjury even WORSE. It is not possible that his latest justification or description can provide an innocent explanation for his "error." If Gonzales was trying to intimate that the problem with the program was the data mining as opposed to the FISA surveillance based on the data mining, then he intentionally told falsehoods in order to deliberately mislead the Congress. There is no innocent explanation possible if this is the case.

Could Gonzales have made his situation worse? If my speculation is correct, I think so.

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    Interesting (5.00 / 1) (#1)
    by andgarden on Sun Jul 29, 2007 at 03:15:24 PM EST
    One wonders why we haven't heard from Ashcroft yet.

    As to Gonzo: every time he opens his mouth it seems to get worse.

    Because ... (none / 0) (#8)
    by chemoelectric on Sun Jul 29, 2007 at 05:24:11 PM EST
    ... no one entitled to know has asked him about it, yet?

    FISA court (5.00 / 1) (#6)
    by Anonymous Liberal on Sun Jul 29, 2007 at 04:16:59 PM EST

    Here's where I'm confused. The FISA Court seems to have been concerned that information obtained via the NSA program was being used to apply for FISA warrants.

    But I don't see what the problem would be using information obtained from legal data mining to make a probable cause showing.  The judge might not think it amounts to probable cause, but I don't see why they would exclude such information from consideration.

    The problem would only arise with information that was obtained illegally.  If you are allowed to use such info to then turn around and apply for a FISA warrant, then FISA is rendered completely meaningless. It's like being able to search a house illegally and then use what you find to apply for a search warrant.  

    So my guess is that the FISA court objected to the use of evidence that was obtained from actual warrantless surveillance, not data mining.  

    Which is a long way of saying, I'm still not sure what exactly the legal objection was regarding the data-mining. Any legally obtained info should be admissible for warrant applications.  

    I'm no 4th Amendment expert (5.00 / 1) (#7)
    by Big Tent Democrat on Sun Jul 29, 2007 at 04:29:55 PM EST
    But my feeling is that the FISA judge interpreted the data-mining and the surveillance as one enterprise.

    To wit, in the judge's mind, the data mining was directed as a form of FISA surveillance that was not done in conformance with FISA therefore the post hoc applications were akin to to using an illegal search to prove probable cause.

    I think the data mining was not neutral - they were directed at targets who could not be surveilled under FISA, think US persons not evidentially linked to a foreign power, etc.  


    Here's what I don't understand (5.00 / 1) (#9)
    by Anonymous Liberal on Sun Jul 29, 2007 at 05:54:56 PM EST
    Marty Lederman suggests that the primary legal objection had to do not with the data-mining itself, but with the follow up, i.e., the use of that data.  

    But that's just another way of saying that the legal objection revolved around actual surveillance, not data-mining.  If the data-mining was legal, then you can use that data for whatever you want. If you use it to identify targets for warrantless surveillance, the legal problem is not with the identification process, but with the warrantless surveillance.  

    But the Times article (and previous articles by the Times and USA Today) suggest that there may have been a legal objection to the data-mining itself.  If that's true, then the problem necessarily has to do with how the data is obtained, not what it's used for.

    To understand what's going on here, we have to figure what Comey and Goldsmith were objecting to.  Was it the use of warrantless surviellance, or was it the obtaining of massive amounts of data without a court order?    


    Again (5.00 / 1) (#10)
    by Big Tent Democrat on Sun Jul 29, 2007 at 06:24:36 PM EST
    It seems to me that you are viewing them a separate activities and I think Marty is suggesting targetted data mining, if there is such a thing.

    Goldsmith's testimony may be the key to the issue.


    Targeted data mining (none / 0) (#14)
    by scarshapedstar on Sun Jul 29, 2007 at 11:00:59 PM EST
    Let's say, hypothetically, "somebody" wanted to use the NSA panopticon to intercept and store anything sent to or from, I dunno, house.gov, senate.gov, johnkerry.com, hell, anything having to do with Democratic candidates and their supporters. And then they performed a few keyword searches on it, I dunno, "scandal", "strategy", "donation", whatever they thought might turn up something juicy.

    And then let's say they wrote one of their patented memos declaring that it's all legal because network architecture means that many emails take at least one hop outside the United States, and therefore it falls under the jurisdiction of FISA.

    Sprinkle in a dash of "pleasure of the President" and "no controlling legal authority" and you're good to go. That is, if you had the audacity to spy on political opponents. Thank God the Repugs haven't stooped that low or anything.


    INTEL 101 (none / 0) (#18)
    by NMvoiceofreason on Mon Jul 30, 2007 at 01:29:26 PM EST
    First of all, it is perfectly legal for the NSA to record EVERYTHING you say on the phone or on your computer. Whether this actually happens or not is a matter of conjecture.

    In FISA, as in longstanding practice, nothing of any importance has occurred until the "intercept" is performed - the data is actually used. Note that phone numbers dialed, header info from e-mails is NOT an intercept - it corresponds to the "pen register trace" in 4th amendment search and seizure law.

    So only when the keyword search is done on it (or a translator listens to it) has an intercept occurred.

    This is the inherent problem with data mining under FISA. When you use the content, you must have a warrant for the content, unless you can show it does not involve US persons or territory.

    Of course such warrants can be applied for retroactively, within 72 hours.


    It seems outrageous (none / 0) (#3)
    by Alien Abductee on Sun Jul 29, 2007 at 03:44:08 PM EST
    that extreme measures supposedly put in place to deal with the "extreme" risks faced from another domestic terror incident like 9-11 have been casually expanded into data mining and pattern analysis to detect the general run of crime, particularly white-collar crime like identity theft and fraud in cases of Internet pharmacy, automobile insurance, health care, etc.

    July 12, 2007  (Computerworld) -- The FBI is using data mining programs to track everyone from potential terrorists to individuals who file fraudulent automobile insurance claims, according to a U.S. Department of Justice report filed with Congress this week...

    Among the six FBI pattern-based data mining initiatives listed in the DOJ report are:

        * A soon-to-be-launched program called the System to Assess Risk initiative designed to help FBI analysts focus in on individuals who may merit further scrutiny from a terrorist standpoint. According to the DOJ, the initiative will not "label anyone a terrorist." Rather, it is designed to help the FBI save time by focusing on those who have already been identified as persons of interest...

    "Each initiative is designed to supplement, not replace, traditional investigative methods. No action is taken based solely on the analytic products produced by these data mining initiatives," the DOJ said. As such, they are governed by a slew of laws such as the Privacy Act of 1974 and the Federal Information Security Management Act of 2007.

    The results generated by such data mining programs are used only as "pointers" or "leads" that are evaluated by investigators to determine if there's a need for further action. "More-intrusive law enforcement techniques are still subject to independent legal requirements," the DOJ spokesman said.

    They're clearly sensitive about the lack of probable cause involved by calling them with the more familiar and more innocuous terms "supplements", "pointers", and "leads," and saying they're just to "save time." But that seems a circular argument since the intrusive searches that are the data mining itself have no basis in probable cause but are purely fishing expeditions.

    More-intrusive law enforcement techniques are still subject to independent legal requirements. These aren't? How can any of this be legal, and why aren't the Republicans who used to screech about Big Government peering into their lives screeching the loudest about it now?

    Just wait (5.00 / 1) (#5)
    by scarshapedstar on Sun Jul 29, 2007 at 04:15:58 PM EST
    until President Hillary has these powers, and what a screeching there shall be...

    triggered the reivew?

    Very possible (none / 0) (#12)
    by Jeralyn on Sun Jul 29, 2007 at 07:29:53 PM EST
    On your theory, I have to go back and review the Judge's opinion and dates. I think she asked for assurance from DOJ that they weren't using the information obtained by warrantless NSA wiretaps as probable cause for FISA warrants. I don't know if data-mining

    Marty Lederman's post is excellent.  

    He gives all the background to the signing statement issue I referenced in my earlier post.

    And I think he's quite possibly correct that the data mining results were being bootstrapped to select wiretapping targets.

    Marcy says,

       The problem was that the Administration was using data mining (already of dubious legality for reasons I'll get into a second) as their basis for choosing targets to wiretap. They were therefore tapping people whose communication patterns--rather than their actions--suggested they might have terrorist ties.

    Worse than that (none / 0) (#13)
    by NMvoiceofreason on Sun Jul 29, 2007 at 10:00:22 PM EST
    There was a FISA judge.

    There was a warrant request.

    Judge asked where "probable cause" / "any evidence" came from.

    Judge was told "you're not read in, we can't tell you"

    Judge refused warrant request and resigned.

    Head judge then took all further requests under advisement until "the program" was explained.

    Bush regime proceeded WITHOUT WARRANTS in violation of 50 USC 1809.

    I can neither confirm nor deny that this is a true story - so don't ask and I won't tell.


    FISA judge (none / 0) (#15)
    by NMvoiceofreason on Mon Jul 30, 2007 at 08:51:28 AM EST

    "Spy Court Judge Quits In Protest":
    December 21, 2005


    Occam's razor (none / 0) (#11)
    by baba durag on Sun Jul 29, 2007 at 06:45:09 PM EST
    Politics has been the motivator for much of this admin.  What if the equation was something along the lines of illegal wiretaps + data mining + political gain?

    I have nothing to base this on.  Just trying out the new roll of Reynold's Wrap.

    Blog whoring (that's me) (none / 0) (#16)
    by NMvoiceofreason on Mon Jul 30, 2007 at 08:54:39 AM EST
     Posted by: cleek | December 21, 2005 at 10:21 AM

    The original Times article raised the possibility that illegally obtained info might have been included in affidavits filed with requests for warrants. It also raised the even more intriguing possibility that some Justice Department attorney seeking warrants might have "misled the court" (read: perjured themselves) in seeking warrants so as to keep the existence of the unwarranted NSA wiretapping private.

    I'd say those are lines of inquiry for any IC or congressional committee, as well as journalists, to pursue.

    GONZO is SO GOOD (none / 0) (#17)
    by NMvoiceofreason on Mon Jul 30, 2007 at 08:58:23 AM EST
    ...he can get others to perjure themselves FOR him.

    ...Uh, guess that makes Cheney good too.

    Olly Olly Oxen Free (none / 0) (#20)
    by NMvoiceofreason on Tue Jul 31, 2007 at 12:01:59 AM EST
     The United States Congress will adjourn for its summer recess on Monday, taking a break until September despite having failed to enact a series of laws demanded by 3/4 of Americans.

    House speaker Nancy Pelosi said in a statement issued after Monday's session that she had dismissed lawmakers until September, despite pressing issues of Constitutional crisis.

    "Congress has decided to break until early September," Pelosi of the mainly ineffectual Democratic bloc in Congress told Reuters. "We have already cut the holiday by one week. It is our constitutional right to take it."

    The recess means Congress will resume just before U.S. military commander General David Petraeus and Ambassador Ryan Crocker are due to report back to Congress on the success of this year's "surge" in U.S. troops to Iraq. A series of stunning recess appointments are expected, where the Administration will fill any and all open positions with recess appointments that would never be confirmed otherwise.

    (snarky version of Reuters piece)