USA Liberty Act

Early October, members of the House Judiciary Committee (HJC) introduced the “Uniting and Strengthening American Liberty Act of 2017,” known as the “USA Liberty Act.” The USA Liberty Act is a bill that would reauthorize, with changes, Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is set to expire on Dec. 31, 2017. According to the House Judiciary Committee, the act would preserve “the core purpose of Section 702: the collection of electronic communications by non-U.S. persons for use in our nation’s defense.”

Image by Jscott1000 on Wikimedia Commons

Although Congress designed this authority to target non-U.S. persons located outside of the United States, it is clear that Section 702 surveillance programs can and do incidentally collect information about U.S. persons when U.S. persons communicate with the foreign targets of Section 702 surveillance.

The USA Liberty Act claims that it will “better protect Americans’ privacy” by requiring the government (e.g., NSA, FBI, etc.) to have “a legitimate national security purpose” before searching an individual’s database. Then when they do have that purpose established, they will be required to “obtain a court order based on probable cause to look at the content of communications, except when lives or safety are threatened, or a previous probable cause-based court order or warrant has been granted.” However, as long as it is relevant to an authorized investigation, the query may be done and an agent can immediately access metadata, such as phone numbers and time stamp information.

FISA and Section 702

Section 702 authorizes intelligence agencies to collect the content, or substance of communications, and non-content, or metadata, for broad purposes of defense and foreign affairs both directly through their own technology and also by compelling U.S. companies to produce data. One form of collection, known as “upstream,” involves capturing packets of information directly as they cross the internet backbone through service providers like AT&T and Verizon when there is a belief such packets will include communications “to” and “from”—and under old rules “about”—an intended target. “Downstream” collection is commonly referred to as “PRISM” and involves the government requesting data from retail providers like Yahoo or Gmail.

The program’s procedural protections include certification (court-approved justifications for surveillance), targeting (methods to ensure surveillance is individual-specific based on selectors), and minimization guidelines (ex ante requirements to withhold, mask, or purge information). The Foreign Intelligence Surveillance Court (FISC) must grant annual approval of the proposed procedures.

The U.S. government has repeatedly stressed the importance of the program. Though the majority of information related to 702 is classified, Office of the Director of National Intellience (ODNI) has declassified some examples of 702 successes (Sharma, 2017).

Privacy Concerns

More than 50 organizations, including the American Civil Liberties Union and the Freedom of the Press Foundation, have joined together to condemn the USA Liberty Act, a bill that reauthorizes and creates additional loopholes for Section 702 of the Foreign Intelligence Surveillance Act (FISA).

In a letter to the House Judiciary Committee, the coalition noted that one of the most obvious problems with the USA Liberty Act is that it fails to address concerns with the “backdoor search loophole,” which allows the government to “conduct warrantless searches for the information of individuals who are not targets of Section 702, including U.S. citizens and residents.”

The problem is that warrantless surveillance is — regardless of the reasons given — a violation of the Fourth Amendment guarantee against unreasonable searches. As Dr. Ron Paul explained, “There is no ‘terrorist’ exception in the Fourth Amendment. Saying a good end (capturing terrorists) justifies a bad means (mass surveillance) gives the government a blank check to violate our liberties.”

Snowden Revelations

The following catalogs various revelations by Edward Snowden, regarding the United States’ surveillance activities.

Each disclosure is assigned to one of the following categories: tools and methods, overseas U.S. government locations from which operations are undertaken, foreign officials and systems that NSA has targeted, encryption that NSA has broken, ISPs (Internet Service Providers) or platforms that NSA has penetrated or attempted to penetrate, and identities of cooperating companies and governments.  Each entry includes the date the information was first published (Lawfare, 2017).

1. Tools and methods

• October 10, 2014: NSA participates in a variety of “human intelligence” programs that are grouped under the codenames TAREX and Sentry Eagle.
• September 14, 2014: NSA and GCHQ infiltrated several German and global telecom companies to build the Treasure Map program, which seeks, to “map the entire Internet – any device, anywhere, all the time.”
• Treasure Map is a vast NSA campaign to map the global internet. The program doesn’t just seek to chart data flows in large traffic channels, such as telecommunications cables. Rather, it seeks to identify and locate every single device that is connected to the internet somewhere in the world—every smartphone, tablet, and computer—”anywhere, all the time,” according to NSA documents
• August 25, 2014: NSA allows two dozen U.S. government agencies to use ICREACH, a “Google-like” search engine that accesses phone calls, emails, and other forms of online communication of foreigners and U.S. citizens.
• August 13, 2014: NSA has an autonomous program called “MonsterMind” that can respond to cyber attacks from other countries without human intervention.
• June 18, 2014: NSA leverages XKeyscore in Germany to penetrate internet traffic and monitor targets in Europe and Africa.
• July 14, 2014: GCHQ has the capability to manipulate online polls, inflate websites’ page views and promoting or disrupting videos on YouTube.
• May 31, 2014: NSA is building a database of facial images and developing facial recognition technology to analyze those images.
• May 31, 2014: NSA has developed technology to compare satellite imagery with a photograph taken outdoors to determine where the photograph was taken.
• May 19, 2014: NSA may have used the Drug Enforcement Administration’s lawful intercepts in the Bahamas, Mexico, the Philippines, and Kenya to covertly collect the contents or metadata of all cell phone calls in those countries. NSA may have obtained this access through cooperation with a private contractor that operates lawful intercepts.
• May 19, 2014: NSA intercepts data transmitted over the “A link” in GSM networks.
• May 12, 2014: NSA modifies some US-made routers and servers before they are exported overseas to facilitate intelligence collection.
• March 20, 2014: NSA launches malware attacks against system administrators to access users’ information. It prefers to do so using personal email addresses or Facebook accounts, rather than IP addresses.
• March 18, 2014: NSA has developed a program to record all of a foreign country’s telephone calls and store them for up to thirty days.
• March 12, 2014: NSA uses fake Facebook servers to infect target computers with implants.
• March 12, 2014: NSA has developed implants to take over targeted computers’ microphones and webcams, record keystrokes and internet browsing histories, and save data from removable flash drives connected to targeted computers. These implants often enable NSA to circumvent encryption software.
• March 12, 2014: NSA has developed implants for routers that enable it to access information sent through virtual private networks.
• March 12, 2014: NSA has developed malware to prevent target computers from accessing particular websites and to corrupt target computers’ downloaded files.
• March 12, 2014: NSA increasingly uses “man-in-the-middle attacks” instead of spam messages to infect target computers with malware.
• March 12, 2014: Some NSA implants can be set to delete themselves after a certain period of time.
• February 10, 2014: The USG sometimes conducts drone strikes based on geolocation of a SIM card associated with a target, without confirming the location using human intelligence.
• February 10, 2014: NSA equips UAVs and other aircraft with “virtual base-tower transceivers,”which can track a target cell phone with a thirty-foot margin of error and enable drone strikes and other military operations.
• January 30, 2014: The Communications Security Establishment Canada has worked with NSA to develop software to track airline passengers using airport Wi-Fi data.
• December 30, 2013: NSA uses a combination of hardware implants placed inside a target room and a radio transmitter aimed at the room from the outside to collect information about the position of objects, sound, and information displayed on monitors inside the room.
• December 30, 2013: NSA has developed tools to insert malware packets for Microsoft Windows systems into wireless LAN networks from the outside.
• December 30, 2013: NSA has developed a system to map wireless LAN networks from a UAV.
• December 30, 2013: NSA has developed a tool to send an alert as soon as a particular cell phone enters its range.
• December 30, 2013: NSA has developed a keystroke logger that functions even when the target computer is not connected to the internet.
• December 29, 2013: NSA uses implants in USB cables and small circuit boards, combined with a nearby relay station with a radio transmitter, to download data from and upload data to target computers even if they are not connected to the internet.
• December 29, 2013: NSA intercepts data from Microsoft Windows’ crash reporting tool to identify vulnerabilities in target computers.
• December 29, 2013: NSA sends spam email with links to infected websites to plant malware on target computers.
• December 29, 2013: NSA diverts packages containing target systems and installs malware on the systems before delivery.
• December 29, 2013: NSA has developed modified monitor cables to record information displayed on target computers.
• December 29, 2013: NSA uses its own GSM base stations to mimic cell phone towers, enabling it to monitor communications and locate phones.
• December 29, 2013: NSA prefers to install malware in BIOS, rather than on hard drives.
• December 10, 2013: NSA intercepts cell phone app advertising data to locate phones.
• December 10, 2013: NSA and GCHQ use cookies, including PREF cookies, to identify targets for cyber exploitation.
• December 9, 2013: US intelligence agencies conduct human intelligence operations within World of Warcraft and Second Life.
• December 4, 2013: NSA has developed a program to correlate American operations officers’ cell phone signals with other cell phone signals in the area, enabling NSA to identify foreign officers who might be tailing the American officers.
• November 11, 2013: NSA and GCHQ use fake LinkedIn pages to place malware on target computers.
• October 24, 2013: NSA intercepts communications from the SEA-ME-WE-3 and SEA-ME-WE-4 undersea cable systems.
• October 14, 2013: NSA has detasked targeted email addresses after excessive spam inflows threatened to overwhelm storage capabilities.
• August 30, 2013: NSA purchases software vulnerabilities from malware vendors.
• June 16, 2013: NSA and GCHQ have used fake internet cafes to collect information about users.

2. Overseas U.S. government locations from which operations are undertaken

• October 10, 2014: NSA has had agents in China, Germany, and South Korea working on human intelligence programs that use “physical subversion” to infiltrate and compromise networks and devices
• June 18, 2014: NSA stationed 240 analysts in Stuttgart, Germany to collect information on European and African targets.
• March 29, 2014: NSA offices are located in Bude, England.
• March 12, 2014: NSA bases are located in Menwith Hill, England and Misawa, Japan.
• January 14, 2014: NSA has established two data centers in China to insert malware into target computers.
• December 29, 2013: A Tailored Access Operations liaison office is located at a US military base near Frankfurt.
• December 5, 2013: Special Collection Service offices are located at the US embassy in Rome and the US consulate in Milan.
• October 27, 2013: A Special Collection Service office was located at the US embassy in Berlin. This office closed after the media reported on it in October 2013.
• October 27, 2013: Special Collection Service offices are located at the US embassies in Paris, Madrid, and Prague, and the US mission in Geneva.
• October 20, 2013: Special Collection Service offices are located at the US embassies in Mexico City and Brasília.
• October 16, 2013: A Special Collection Service office is located at the US embassy in Islamabad.

3. Foreign officials and systems that NSA has targeted

• August 31, 2014: NSA and GCHQ prioritize wide-scale spying against Turkey (including infiltrating the computers of Turkey’s top political leaders), but also cooperate with Ankara to combat the PKK.
• August 13, 2014: NSA accidentally knocked out Internet access in large parts of Syria in 2012 while trying to install surveillance software on a Syrian router.
• July 9, 2014: NSA and FBI targeted five Muslim-American leaders for surveillance, including the executive director of the Council on American-Islamic Relations and a former Bush Administration official who held a top-secret clearance.
• July 1, 2014: NSA received broad leeway from the FISA Court in 2010 to spy on 193 countries, the World Bank, the IMF, the European Union and the IAEA.
• July 1, 2014: NSA received permission to spy on the Bharatiya Janata Party in India, the People’s Party in Pakistan, the Muslim Brotherhood and National Salvation Front in Egypt, the Amal Movement in Lebanon, and the Bolivarian Continental Coordinator in Venezuela.
• May 19, 2014: NSA has collected the contents of all cell phone calls in the Bahamas and stored the data for up to a month.
• May 19, 2014: NSA has collected the metadata of all cell phone calls in Mexico, the Philippines, and Kenya.
• May 12, 2014: NSA monitored the communications of diplomats from UN Security Council member countries in advance of a vote on sanctions against Iran.
• May 12, 2014: NSA has monitored the communications of a number of foreign embassies listed in a leaked document.
• April 8, 2014: NSA has monitored the communications of Amnesty International, Human Rights Watch, and other similar groups.
• March 31, 2014: NSA has monitored or attempted to monitor the communications of 122 world leaders listed in a leaked document.
• February 18, 2014: As of July 2011, NSA was considering conducting surveillance of WikiLeaks.
• February 18, 2014: NSA has conducted surveillance of Anonymous.
• December 29, 2013: NSA penetrated the network of Mexico’s Secretariat of Public Security to collect information about drug and human trafficking along the US-Mexico border. This collection stopped after the media reported on it in October 2013.
• December 20, 2013: NSA and GCHQ have monitored the communications of a variety of charities and intergovernmental organizations, including the UN Development Programme, UNICEF, Médecins du Monde, the Economic Community of West African States, and the European Commission.
• December 20, 2013: NSA and GCHQ have monitored the communications of several Israeli officials, including the Prime Minister and Defense Minister.
• December 20, 2013: NSA and GCHQ have monitored the communications of the Thales Group, a defense contractor that is partially owned by the French government.
• December 5, 2013: NSA has monitored the communications of the Italian embassy in Washington.
• November 11, 2013: NSA and GCHQ have penetrated OPEC’s network to collect economic data.
• November 2, 2013: NSA has monitored the communications of UN Secretary General Ban Ki-moon.
• November 2, 2013: NSA tracks Israeli drones and Black Sparrow missiles.
• November 2, 2013: NSA has collected draft email messages written by leaders of the Islamic State of Iraq.
• November 2, 2013: NSA has monitored the communications of the Afghan Ministry of Foreign Affairs and UN officials in Afghanistan.
• November 2, 2013: NSA has monitored the communications of Venezuela’s Ministry of Planning and Finance.
• October 24, 2013: NSA has monitored the communications of the Italian leadership and Ministry of Defense.
• October 23, 2013: NSA has monitored the communications of German Chancellor Angela Merkel.
• October 22, 2013: NSA has monitored the communications of the French embassy in Washington and the French mission in New York.
• October 16, 2013: NSA intercepted Osama bin Laden associate Hassan Ghul’s wife‘s email to confirm Ghul’s location before the CIA killed him in a drone strike.
• September 8, 2013: NSA has monitored the communications of Petrobas, an oil company that is partially owned by the Brazilian government.
• September 2, 2013: NSA has monitored the communications of several Mexican and Brazilian officials, including the presidents of both countries.
• September 1, 2013: NSA has penetrated the network of the French Ministry of Foreign Affairs.
• August 31, 2013: NSA has monitored the communications of Al Jazeera.
• August 31, 203: NSA has penetrated Aeroflot’s reservation system.
• August 29, 2013: NSA has monitored the unencrypted communications of the Syrian military.
• June 16, 2013: NSA and GCHQ monitored the communications of several delegations to the 2009 G20 summit in London, including the South African, Turkish, and Russian delegations.

4. Encryption that NSA has broken

• December 13, 2013: NSA has broken the A5/1 encryption used by many GSM cell phones.

5. Identity of ISPs and platforms that NSA has penetrated or attempted to penetrate

• December 28, 2014: NSA has maintained “sustained Skype collection” since February 2011.
• September 5, 2014: The Office of the Director of National Intelligence explored the possibility ofspying on foreign companies to give American businesses a competitive advantage.
• March 29, 2014: NSA and GCHQ have penetrated the networks of several German internet companies, including Stellar, Cetel, and IABG.
• March 22, 2014: NSA has penetrated Huawei networks in Shenzhen, China.
• March 12, 2014: NSA has developed implants for routers that enable it to monitor communications sent over Skype and other VOIP programs.
• February 27, 2014: GCHQ has worked with NSA to collect Yahoo webcam images. It saved one image every five minutes, rather than full video, and analyzed the data using facial-recognition software.
• February 18, 2014: NSA has considered conducting surveillance of Pirate Bay because of its involvement in copyright violations.
• February 15, 2014: NSA has collected bulk call data from Indosat, an Indonesian telecommunications company.
• January 28, 2014: NSA and GCHQ have developed capabilities to collect user data from a variety of iPhone and Android apps, including Angry Birds and Google Maps.
• December 29, 2013: NSA has developed hardware and software implants for Juniper, Cisco, and Huaweil firewalls.
• December 29, 2013: NSA has developed software to target the firmware of Western Digital, Seagate, Maxtor and Samsung hard drives.
• December 30, 2013: NSA has developed hardware and software implants for Dell and HP servers.
• December 30, 2013: NSA has developed software to target users of Juniper and Huaweil routers.
• December 30, 2013: NSA has developed an implant for first-generation iPhones that enables downloading and uploading data, activating the phone’s microphone and camera, and locating the phone.
• December 30, 2013: NSA has developed modified Eastcom and Samsung cell phones, which can be swapped with a target’s own phone of the same model and then used to collect information.
• December 9, 2013: NSA and GCHQ have penetrated the Xbox Live gaming system to collect information about foreign targets.
• October 30, 3013: NSA and GCHQ have intercepted communications at communication links outside the United States that connect Google and Yahoo data centers.
• October 14, 2013: NSA has harvested email and instant messaging contact lists from Yahoo, Hotmail, Facebook, and Gmail.
• October 4, 2013: NSA and GCHQ have attempted to develop techniques to identify Tor users but have been largely unsuccessful.
• September 15, 2013: NSA has collected financial transaction information from Visa and SWIFT.
• September 7, 2013: NSA and GCHQ have developed capabilities to access user data from iPhone, BlackBerry, and Android devices.

6. Identities of cooperating companies and governments

• September 15, 2014: NSA worked with New Zealand’s Government Communications Security Bureau to start collecting metadata on communications entering and exiting New Zealand.
• August 4, 2014: NSA has increased the surveillance assistance it provides to the Israeli SIGINT National Unit, including monetary support for covert operations.
• July 25, 2014: NSA has significantly expanded its relationship with the Saudi Ministry of Interior by providing it “direct and analytic technical support” on “internal security” matters.
• May 19, 2014: NSA has worked with General Dynamics to collect the contents or metadata of all cell phone calls in the Bahamas, Mexico, the Philippines, and Kenya. The Australian Signals Directorate has cooperated with NSA on the collection in the Philippines.
• April 30, 2014: GCHQ had extensive access to NSA’s PRISM data during the London Olympics and later sought similar access on an ongoing basis.
• February 18, 2014: As of August 2010, the USG was attempting to persuade Australia, Germany, and the United Kingdom to file criminal charges against WikiLeaks founder Julian Assange.
• February 15, 2014: The Australian Signals Directorate cooperated with NSA to collect information about Indonesia’s trade negotiations with the United States.
• February 15, 2004: The Australian Signals Directorate cooperated with NSA in an effort to break the encryption used by Papua New Guinea’s military.
• December 20, 2013: NSA entered into a contract with RSA to use an NSA formula as the default option for number generation in the Bsafe security software, enabling NSA to penetrate the software more easily. RSA asked consumers to stop using the formula after the Snowden leaks revealed its weaknesses.
• December 17, 2013: The Norwegian Intelligence Service cooperates with NSA to collect information about Russia, particularly Russian military activities in the Kola Peninsula and Russian energy policy.
• December 9, 2013: The Communications Security Establishment Canada has established listening posts in approximately twenty countries at NSA’s request.
• December 5, 2013: The Swedish Defence Radio Establishment cooperates with NSA to collect information about Russia.
• November 27, 2013: The Communications Security Establishment Canada cooperated with NSA to collect information about the 2010 G20 summit in Toronto.
• November 17, 2013: The Australian Signals Directorate cooperated with NSA in an attempt to monitor the communications of senior Indonesian officials, including the President, the Vice President, and several ministers.
• November 17, 2013: The Australian Signals Directorate has been more willing than other allies to share unminimized bulk metadata with NSA.
• November 2, 2013: As of 2009, NSA was considering establishing an intelligence-sharing relationship with Vietnam.
• November 2, 2013: NSA has an intelligence-sharing relationship with the Israeli SIGINT National Unit.
• October 7, 2013: The Communications Security Establishment Canada cooperated with NSA to monitor the communications of Brazil’s Ministry of Mines and Energy.
• June 7, 2013: NSA has collected international communications from Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple as part of its PRISM program.
  

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References

Congress.gov. (2017). H.R.3989 - USA Liberty Act of 2017. [online] Available at: https://www.congress.gov/bill/115th-congress/house-bill/3989/text [Accessed 21 Oct. 2017].

Judiciary Committee. (2017). USA Liberty Act. [online] Available at: https://judiciary.house.gov/wp-content/uploads/2017/10/100517-USA-Liberty-Act.pdf [Accessed 21 Oct. 2017].

Lawfare. (2017). Snowden Revelations. [online] Available at: https://www.lawfareblog.com/snowden-revelations [Accessed 24 Oct. 2017].

Sharma, C. (2017). The USA Liberty Act: House Judiciary’s Proposed Reauthorization of Section 702. [online] Lawfare. Available at: https://lawfareblog.com/usa-liberty-act-house-judiciarys-proposed-reauthorization-section-702 [Accessed 24 Oct. 2017].

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