Obama Administration Expanded Warrantless Surveillance to Target ‘Malicious Cyber Activity’

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Documents from NSA whistleblower Edward Snowden show warrantless surveillance was expanded by President Barack Obama’s administration to target “malicious cyber activity.”

After Congress legalized the warrantless wiretapping with the FISA Amendments Act in 2008, non-US citizens could be targeted abroad. The administration developed a new policy for cybersecurity and took steps that would make the difference between a spy and criminal nearly non-existent.

According to a report from the New York Times and ProPublica, the White House National Security Council decided in May 2009 that “reliance on legal authorities that make theoretical distinctions between armed attacks, terrorism and criminal activity may prove impractical.”

The NSA proposed that the government use the warrantless surveillance program for cybersecurity about the same time.

In May and July 2012, the Justice Department signed off on searches of “cybersignatures” and Internet addresses. The approval was tied to previously granted authority to spy on foreign governments obtained from the Foreign Intelligence Surveillance Court. However, the NSA soon grew frustrated with the limits this imposed on them.

“That limit meant the NSA had to have some evidence for believing that the hackers were working for a specific foreign power,” the report indicates. “That rule, the NSA soon complained, left a ‘huge collection gap against cyberthreats to the nation’ because it is often hard to know exactly who is behind an intrusion, according to an agency newsletter. Different computer intruders can use the same piece of malware, take steps to hide their location or pretend to be someone else.”

Before the year was over, the NSA pressed the secret surveillance court for permission to use the warrantless wiretapping program for “cybersecurity purposes.”

As this happened, the FBI’s authority to target Internet data and use it for its criminal and “national security” investigations expanded.

…[T]he FBI in 2011 had obtained a new kind of wiretap order from the secret surveillance court for cybersecurity investigations, permitting it to target Internet data flowing to or from specific Internet addresses linked to certain governments.

To carry out the orders, the FBI negotiated in 2012 to use the NSA’s system for monitoring Internet traffic crossing “chokepoints operated by U.S. providers through which international communications enter and leave the United States,” according to a 2012 NSA document. The NSA would send the intercepted traffic to the bureau’s “cyberdata repository” in Quantico, Virginia…

The newly claimed authority is but another example of an expansion of executive power the Obama administration arrogated to itself without any public debate whatsoever. (more…)

DNI Clapper’s Lawyer Claiming Clapper Lied To Congress Because He ‘Forgot’ About NSA Program

From the Department of you can’t be serious. The top lawyer for Director of National Intelligence James Clapper is making a novel argument as to why Clapper did not technically commit perjury despite saying something he knew to be untrue while testifying under oath before Congress – Clapper somehow “forgot” about a massive and highly controversial secret spying program he oversees. 

Yes, you read that right. The general counsel for the Office of the Director of National Intelligence, Robert Litt, is trying to get his boss out of trouble by claiming that the DNI had some kind of epic brain fart while testifying before Congress. Litt’s explanation is that Clapper “mistakenly” thought he was not running a global dragnet program that was vacuuming up private data from American citizens without a warrant when asked by Senator Wyden in a hearing before the Senate Intelligence Committee if he was doing just that.

Seriously, this is the current explanation.

Director of National Intelligence Jim Clapper wasn’t lying when he wrongly told Congress in 2013 that the government does not “wittingly” collect information about millions of Americans, according to his top lawyer. He just forgot. 

“This was not an untruth or a falsehood. This was just a mistake on his part,” Robert Litt, the general counsel for the Office of the Director of National Intelligence, said during a panel discussion hosted by the Advisory Committee on Transparency on Friday. “We all make mistakes.”

Slow clap for Clapper and his intrepid legal team. But just when you thought it could not get any more absurd you remember that Clapper had a completely different explanation for why he lied to Congress just after the Snowden leaks came out. Clapper’s first explanation for lying was not that he made a mistake but that he had strategically looked for the “least untruthful” answer to give without damaging intelligence operations.

So did he forget or did he lie to Congress under oath for what he believed was a good cause?