Secret FBI Subpoenas Scoop Up Personal Data from Scores of Companies

https://www.nytimes.com/2019/09/20/us/data-privacy-fbi.html

by tysone • 7 years ago

329 106 7 years ago

We can't keep pretending this is still a Democracy when we have a completely unaccountable NSA/CIA/FBI that seems to repeatedly hide their mistakes and the dubious legality of their sources & methods behind the classification and national security walls.

tempodox• 7 years ago

Data seizures of this kind used to be based on probable cause. Now the probable cause is “living on this planet in this time”. Like, “you're a suspect, we just don't know of what yet”.

aphextim• 7 years ago

Data seizures of this kind used to be based on probable cause.

I think they get away with this because they are just collecting the information in mass and are not targeting an individual.

There was a point where they were only scooping up information on foreign entities, and at some point that shifted and they started collecting all foreign and domestic information. I believe it was right around the time 9/11 happened.

This is what caused William Binney to leave the NSA

https://en.wikipedia.org/wiki/William_Binney_(intelligence_o...

In order to parse that information and look up information about a particular subject or individual, I believe they still require a subpoena, but who is to say someone with access doesn't use this giant trove of information nefariously.

It also opens up the possibility of someone getting blackmail/dirt on a competitor and bribing a NSA employee to get the information.

Also what is to prevent someone from retroactively going back through the information on what used to be allowed but now has changed to being illegal because of an administration change/laws being passed.

The alphabet agencies definitively need more oversight, however I feel anyone tasked with that job ends up becoming entrenched in the corruption and have a hard time holding them accountable.

catacombs• 7 years ago

We can't keep pretending this is still a Democracy when we have a completely unaccountable NSA/CIA/FBI that seems to repeatedly hide their mistakes and the dubious legality of their sources & methods behind the classification and national security walls.

And people still call Snowden a traitor for revealing this kind of practice in 2013.

whatshisface2• 7 years ago

The claim that Snowden is a traitor is inseparable from the idea that the government and the people are separate entities, so that it's possible to betray one in service of the other. In that world Snowden would be a traitor to the US and everybody else at the NSA would be a traitor to the people. Obviously such a thing is only possible if democracy breaks down to the point where the government no longer expresses the will of the people, and if that is happening anywhere, it's happening in the high clearance world where voters never get to see whether or not they're happy with what's going on.

ethagnawl• 7 years ago

... and fault him for not using the "appropriate channels" to air his grievances. It's too soon to know what will come of the current whistleblower kerfuffle, but it's making the "appropriate channel" take look more foolish by the hour.

hsnewman• 7 years ago

The USA is a federal republic, not a democracy.

Tarq0n• 7 years ago

These are not mutually exclusive categories.

burtonator• 7 years ago

It's still a democracy, just a very sick one.

The United States is like a 243-year-old engine with a desperate need of an oil change.

That oil is us...

...ok. Horrible metaphor but you get it.

Not calling you out just saying just don't let cynicism take hold.

Remember, we pushed Bush out and he was a war criminal.

mschuster91• 7 years ago

Remember, we pushed Bush out and he was a war criminal

But never tried him, Rumsfeld or the rest - the only ones who really got a kick to their butts were those implicated in Abu Ghraib. And now you elected a president who not only is a serial liar, probably a sexual assaulter ("grab them by the ..."), but also someone who is involved in multiple lawsuits and probably either unwittingly (the satellite photo) or willingly (the recent whistleblower case) discloses classified information to all of Western enemies.

The party of the President is absolutely unwilling to hold him accountable for his (non)actions as long as they get their abortion bans. And there is no real progress in holding the real deep state (=three letter agencies - not all government employees that don't like the President) accountable and transparent, as evidenced in the original submission.

ramphastidae• 7 years ago

How was GWB pushed out? He was re-elected and served the maximum two terms.

raxxorrax• 7 years ago

I would say the western intelligence community actively created rumors of the Russia scare 2.0. This should have severe consequences on every level of relevant institutions.

Liquix• 7 years ago

Thanks for pointing this out.. I (like most other US citizens) have zero idea of what things are actually like in Russia. The news reminds us daily that Russia is a frozen hellscape filled with miserable savages, Russians are the 'bad guys' of choice in a disproportionate amount of high visibility movies and Netflix shows (Stranger Things season 3 comes to mind), our school system teaches kids next to nothing about the country.

It's a bit reminiscent of North Korea's daily news blasts showing fabricated footage of how miserable life in SK and USA is. Probably not as extreme a slant going on here, but there's an awful lot of anti-Russia sentiment floating around with no readily apparent basis in fact.

cronix• 7 years ago

It was very eye opening to me when I had a conversation with a family member who is retired CIA/NSA/Rand. Not a low level person. I was asking them about when President Clinton asked about the UFO's, and why the president was not told the answers he was seeking. Their reply: the presidency is not the highest security clearance and the president does not have a right to know everything. I wonder if that's what the founders had in mind when they formed our government. And what happens when those people disagree with whoever is in office? They control what the president knows, as they are the ones who brief him, and only what "they" think is appropriate. They decide.

choult• 7 years ago

If that is indeed the case then I am very thankful for the past couple of years and next year.

PorterDuff• 7 years ago

The result is pretty simple. The intelligence agencies become a fourth branch of government and likely the dominant one.

It would be interesting to better understand the dynamics between the military and the NSA/CIA/FBI/etc..

I suppose that one good thing that came out of the 2016 election was that it become more obvious that the intelligence services run their own domestic policy, what I don't understand is how monolithic that newish branch of government is.

WrtCdEvrydy• 7 years ago

the presidency is not the highest security clearance

Presidents usually have the same clearance as the highest clearance.

the president does not have a right to know everything

This is true, clearances are need-to-know compartmentalization. I was only briefed on stuff required for my job... and would often be told something was outside of scope.

dfxm12• 7 years ago

I wonder if that's what the founders had in mind when they formed our government.

FWIW, the founders didn't intend for presidents to have nearly as much power as they have today.

Perhaps you can research intelligence operations during the Revolutionary War to glean some of their thoughts on how intelligence and the intelligence community should be set up. Of course, I don't know if our founding fathers were burdened with the task of maybe or maybe not covering up the existence of UFO's. :)

dx87• 7 years ago

Your family members were lying to you if they said that the president doesn't get to see whatever classified material they want. The president doesn't even have a security clearance like everyone else requires, they get to see whatever they want and can declassify anything they want.

AndrewKemendo2• 7 years ago

I'd be hesitant to take what your family member said as doctrine, or that it's any different than any other Cabinet or other part of the Executive Branch.

It's important to make the distinction that while the President doesn't know all of the things that the Intelligence Community is doing at any one time, there isn't anything that he can't know. It's no different in any other part of the cabinet - the Cabinet members and senior executive service all ultimately decide what hits the desk of the President, so in that sense there is an entire staff "controlling what the president knows." Same as any large organization.

The DNI, DIRNSA, DCI, JS/J2 and all service 2's all work for the President, and they collectively are the ones who "know all the things" - so you can bet if he needs to know something, one of those people will give it to him.

AndrewKemendo2• 7 years ago

I'm not sure what kind of accountability you're looking for that doesn't already exist.

IC Oversight [1] is a massive and well known program, which requires extensive yearly training from every IC member and even more from supervisors and executives.

[1]https://en.wikipedia.org/wiki/United_States_Intelligence_Com...

buboard• 7 years ago

Are they really unaccountable? The silence of people seems to affirm their choices.

president• 7 years ago

What would be the alternative? For a functional national security program, some aspects need to be secret from the general public in order to protect against compromise.

cwkoss6• 7 years ago

Judges should have to sign off on warrants to access data, and there must be a process to (at least retroactively) sue if the basis of the warrant was fraudulent or fabricated.

Further, the 'gag order' component should be temporary and of minimum necessary duration. The arrest of a target should automatically invalidate the gag order because keeping this information from the defendant is a violation of due process.

Merrill3• 7 years ago

Subpoenas have been used frequently for decades to request "records kept in the ordinary course of business". The only thing different in this case seems to be that there is a perpetual gag order. But if the local prosecutor subpoenas your phone records because you are being investigated for bribing an athletic coach at a university, I don't think the phone company will tell you about it.

sneak• 7 years ago

The major thing that is different is that no judge or court is involved - these are issued by the requesting organization directly with no oversight.

hammock3• 7 years ago

NSLs are not subpoenas. They are "administrative subpoenas," the difference being that they are not issued by a court and have no review or oversight by any judge or court officer. They are about as much a subpoena, as the FISA "court" is a court of law.

Merrill3• 7 years ago

"In most instances, a subpoena can be issued and signed by an attorney on behalf of a court in which the attorney is authorized to practice law. If the subpoena is for a high-level government official (such as the Governor, or agency head), then it must be signed by an administrative law judge. In some cases, a non-lawyer may issue a subpoena if acting on his or her own behalf (known as pro se representation)."

https://litigation.findlaw.com/going-to-court/what-is-a-subp...

A judge's approval is not needed. The attorney (e.g. a prosecuting attorney) is the "court officer".

hammock3• 7 years ago

You missed the point. Your citation refers to a traditional subpoena, which I was saying is distinct from these "subpoenas." NSLs are not issued by prosecuting attorneys.

jenvalentino2• 7 years ago

Hi. I'm the reporter on this story. Thanks for discussing it!

I thought it might be helpful for me to make a couple points.

First, national security letters have been around, AND controversial, for years now. A number of tech companies have fought the gag orders. The news here is really that we are seeing for the first time which other specific companies get a lot of these — especially banks, credit agencies and so forth, which have all been silent on the subject.

Second, @hammock is correct to say that these are not approved by a judge. Nor are they grand jury subpoenas. They are administrative subpoenas, but unlike other administrative subpoenas, almost all of these come with stringent, long-term gag orders. So, they're a pretty special type of subpoena, not one with which everyone is familiar.

Thanks again for reading.

RonaldSchleifer• 7 years ago

Thank you for your reporting on this, even if it just seems to chronicle the ever accelerating deconstruction of the Constitution. Even if American Constitutionalists were able to walk back these types of clear abuses on the social compact that keeps peace by two steps, it will only be without realizing that five steps were taken towards the progress of disassembling the Constitution.

An old, irrelevant, outdated document the Constitution is, they tell you as part of the psychological manipulation game they play to get people to foolishly abdicate their most fundamental rights through the con job of government's benevolence. But in the end, well beyond the point of way-too-late, people will unfortunately have to come to terms with the reality that freedom, liberty, self-governance, and that the government is no one's friend are not old, irrelevant, and outdated principles; they are universal principles that span time.

Just like many things in humanity have been discovered and crated, then forgotten and taken for granted and driven to being lost and collapsed, and then rediscovered or reinvented; so too, does it seem humanity is on course to bury this experiment with self-governance that was kicked off in 1775, for maybe another 1,000 years, if not permanently. Is there even an opportunity or chance for freedom to rise again when it is suppressed so thoroughly by way of technology and soulless robots and AI? I think not. I hope I am for once wrong. ... War or galvanizing event to rationalize ever more eradication of liberty, incoming, all to the cheers of adoring fans.

In memoriam the people who's voices have been squelched by the tech tyrants. They will not be the last victims of this evil that is descending on us with ominous persistence.

kazagistar2• 7 years ago

I'm not sure how the constitution is remotely relevant here. It's clearly not protecting us from this in it's current state. If we want protections against secret government gag orders, we have to vote for people who will oppose them, which is a really small number of people indeed, or else vote to change the constitution to actually start protecting these rights. And if this turns out to be impossible, what is at fault? Probably to some extent... the existing powers of government, as enshrined in the constitution.

The governmental system we have is not a perversion of the constitution, but a reflection of its inadequacies.

guelo• 7 years ago

Not sure what you're talking about, the courts have ruled that NSLs are constitutional.

mirimir4• 7 years ago

The Constitution still says what it always said. The problem is that there's been 243 years of interpretation. So what it effectively says in many cases bears little relationship to it.

hammock3• 7 years ago

As @mLuby says below, recipients of NSLs "can't reveal they've been gagged, or what type of data they were compelled to reveal."

Has evidence from an NSL ever been introduced into court by a prosecutor? It seems like this gag order serves to allow the FBI to pursue parallel construction and then keep their tracks covered in doing so.

Porthos9K4• 7 years ago

This is an excellent and deeply disturbing article, but all I can do in response right now is suspect that if J. Edgar Hoover were still alive to see what shenanigans the modern FBI gets up to when nobody is looking, he would wholeheartedly approve. It's obvious that the agency has learned all the wrong lessons from the exposure of COINTELPRO.

The FBI is still The House J. Edgar Built, and Congress ought to tear it down.

bilbo0s• 7 years ago

Congress ought to tear it down.

ABSCAM.

There is a Lavrentiy Beria everywhere. (There's probably thousands of Lavrentiy Beria's in the US alone, truth be told.) With the threat of ABSCAM-like ops looming out there, I wouldn't count on politicians saving us. Just ask black and hispanic males how well appealing to politicians for help from malicious prosecution has worked out for them historically.

chrischen2• 7 years ago

You can't assume that Hoover would have been against increasing the power available to himself and his agency.

mirimir4• 7 years ago

Thanks for writing it.

This is certainly disturbing news. And it's great to know about it. But I'm left feeling hopeless. Because we've been fighting this bullshit for decades, with little to show for it. And personally, there's nothing actionable.

So it goes.

cwkoss6• 7 years ago

Minor method of resistance: whenever you get a resume that lists work with the FBI, put it directly into the circular file.

drewmol• 7 years ago

Fwiw, it was the PATRIOT Act, passed shortly after the events of 9/11/2001, that allows for these administrative subpoenas and gag orders and removed any effective judicial oversight. Many of those provisions in the act were set to expire and those expirations were extended by both president Bush and Obama. IIRC the AG or their subordinates have to notify the judiciary of these subpoenas but can issue a gag order along with the disclosure effectively removing any judicial oversight.

chrischen2• 7 years ago

The problem is anything that helps someone do their job more easily will get approved.

jdc• 7 years ago

A little more background on administrative subpoenas:

We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena (https://www.wired.com/2012/08/administrative-subpoenas)

SlowRobotAhead• 7 years ago

Didn’t Biden take credit for writing the patriot act? Seems like a strange thing to congratulate yourself for.

stjohnswarts3• 7 years ago

The Patriot Act has done far more damage to our democracy than 9/11 did. It's actually quite sad. It can't be considered Ironic because any idiot can see it's an arrow into the heart of a healthy democracy that is leery of government overreach.

clubm8• 7 years ago

Hi reporter on this story:

Are we aware if these are targeted (~60 orders = ~60 targets) or requests for large swathes of information?

jenvalentino2• 7 years ago

Hi. We don't know for sure how many targets are involved in these letters. However, the USA Freedom Act prohibited bulk collection of information here.

The government now releases basic statistics on NSLs, for example here: https://www.dni.gov/files/CLPT/documents/2019_ASTR_for_CY201....

In 2018, there were 10,235 NSLs, with 38,872 "requests for information" (ie targets) within those NSLs. So you can make some general inferences.

cwkoss6• 7 years ago

Do you know if anyone has ever responded to one of these letters with "If you want to access our data we need a signed order from a judge" and how that played out?

erikpukinskis• 7 years ago

According to the EFF:

Can I challenge an NSL in court?

Yes. Since the statute was amended in 2006, an NSL recipient can petition a federal district court to modify or set aside both requests for records and the gag orders that accompany such requests.

There’s a good summary of the EFF’s challenges to the law here: https://www.eff.org/deeplinks/2016/04/disappointing-ruling-n...

ryacko3• 7 years ago

As a suggestion for following articles on the subject, you could explore why there is no remedy for this apparent loss of privacy.

I personally think that the Bill of Rights should have been amended once tabulating machines were used for the 1890 census, without which, it would have taken the whole decade to count.

SamReidHughes2• 7 years ago

It wouldn’t take a whole decade to count. Just hire more people. A census’s cost is proportionate to the population.

xfitm3• 7 years ago

I spent a long time in the hosting industry, most of which was in early 00s. When the feds couldn't get a court to order to hand over data we simply sold the data to them. They paid, quite handsomely at times.

Accujack• 7 years ago

This is pretty telling of the present state of U.S. law... there's no law against this (even today).

The existing laws that protect privacy and what can be done with information companies collect have never been updated post computer revolution... the same generation that was in power before then is still in power, and they've never had any interest in changing that.

The US government started failing a long time ago, and everyone in that generation is either part of the problem or unwilling to admit it IS a problem.

no_opinions• 7 years ago

Based on what I read online in discussions and in the news, there's little nuance into the circumstances around the data retrieval:

- Is it related to someone stealing classified information, spying / or spy cell, or could be planning a terrorist attack? In that case, they may be more sophisticated, or the investigation shifts to preventing something from occurring in the future, or its a matter of trying to figure out what a cell of foreigners from Russia/etc. are trying to get.

- Is it something related to a drug investigation? If it's involving drugs, countries everywhere have roving wiretap abilities because druglords use burner phones, and like above, they go to great lengths to hide / mask what they're doing as if it's legitimate business.

- Is it related to any other criminal investigation? Police has more ability to intercept communications than civilians. There is a whole world inside here of nuances. An example in USA is subpoena'ing email records where unopened email is treated as abandoned, they don't require a search warrant. Not that there's many cases prosecuted relying on abandoned email retrieved that'd be thrown out if the law changed :P

- Protect/regulation around data of medical (HIPAA in US, I think GDPR in EU), children (COPPA in US)

- Normal consumer privacy protections (GDPR in EU)

Here's an example of Germany's constitution (Article 10 [Privacy of correspondence, posts and telecommunications] , https://www.bundesregierung.de/breg-en/chancellor/basic-law-...):

(1) The privacy of correspondence, posts and telecommunications shall be inviolable.

But, then it says:

(2) Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.

The above basically gets you what most countries have anyway, so maybe it wouldn't address the concerns people have. If there was a constitutional check for privacy over the wire/data in the cloud it'd be upheld at the judicial level to check the executive / legislative branch. However, there'd still be mechanisms where the government can access data, one way or another. It'd probably end up having the phraseology around them narrowly tailored, there'd be less swept in when decisions are in a gray area.

wsy• 7 years ago

The citation from Germany's constitution is a bit misleading. In Germany, law enforcement warrants must be signed by a judge (in urgent cases, a prosecutor can sign them, and they have to be confirmed soon afterwards by a judge). There is an exception for communication interception by the intelligence services: those warrants must be confirmed by the G-10 committee which is organized like a court, but directly appointed by parliament. The main differences to the US system are strict separation between law enforcement and intelligence services, and direct oversight of the latter by the parliament.

mLuby• 7 years ago

A gag order can be reasonable: "give us what you have on user John Smith birthday 1/1/1950 but don't tell him anything" makes sense if you're, say, investigating a criminal ring John is part of.

What is unreasonable is that companies can't reveal they've been gagged, or what type of data they were compelled to reveal, even after the fact. Companies should be allowed to say "we have disclosed access logs, location history, searches, encrypted backups for 1-50 accounts in response to lawful request from law enforcement." And they should be able to disclose the letter after an investigation has closed (whether it resulted in legal action against the individual or not).

cameldrv• 7 years ago

Yes, a gag order can be reasonable. Wiretaps with warrants usually have them. IMO, there should be no gag order, and the subject of the subpoena should be required to be notified and allowed to challenge the subpoena if it is issued without a judge.

Gag orders should be allowed, but only if signed off on by a judge, and only for a reasonable amount of time to complete an investigation. If the government gets your information, and decides not to bring charges, you should have the right to know about that at some point.

GhettoMaestro2• 7 years ago

If the government gets your information, and decides not to bring charges, you should have the right to know about that at some point.

Disagree. There are numerous cases where it takes multiple investigations to "get" a career criminal (think organized crime). If each batch of subpoenas or sealed warrants were exposed even when there is no charge this time, that gives said suspect a very nice opportunity to clean up loose ends.

TLDR: If people know they are being actively looked at they will attempt to destroy/suppress/hide evidence.

andrerm• 7 years ago

And don't forget FBI is the one pushing against encryption

inscionent• 7 years ago

The Justice Department as a whole has this agenda under Barr, not just FBI.

olliej• 7 years ago

Seriously, we need to kill off this warrant workaround that the US gov has decided is valid.

Almost every product you buy now ends up sending your data to some company, and the government has decided that means you have no expectation of privacy, which is clearly nonsense.

nullc• 7 years ago

The use of administrative subponeas with effectively limitless gags is very concerning, but I also feel that the attention is somewhat misplaced.

The US government receives far more private data about people from companies selling it or simply giving it away, than they get via administrative subpoena. The practice of paying for requested data also makes companies complicit in these orders, when they are issued-- they're a revenue center.

Without stronger laws barring the collection of data and providing stiff civil or even criminal penalties for disclosure (including to the government) the bulk of the situation will not be much improved.

sroussey• 7 years ago

I really got worried when I stopped getting these and other subpoenas from 3 letter agencies. I knew we had to beef up our server defenses. :/

stjohnswarts3• 7 years ago

I am the odd duck libertarian who believes we need a minimum income welfare safety net and health care as a right. However, I scoff at giving the government more power in the areas of surveillance and police power. I just do not understand people backing up the government in taking away civil rights and personal freedom in the name of "making us safer". Honestly we are far safer than even as recent as the 90s, let alone the 1890s. People will always find things to clutch their pearls over, and it's all relative.

fulldecent2• 7 years ago

I am surprised that more NSLs have not been leaked or "hacked".

Just store the NSLs next to your user data so that when it gets stolen and published then your NSL is published as well.

Secret FBI Subpoenas Scoop Up Personal Data from Scores of Companies

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