The US Person Back Door Search Number DOJ Could Publish Immediately

The Senate Judiciary Committee had a first public hearing on Section 702 today, about which I’ll have several posts.

One piece of good news, however, is that both some of the witnesses (Liza Goitein and David Medine; Ken Wainstein, Matt Olsen, and Rachel Brand were the other witnesses) and some of the Senators supported more transparency, including requiring the FBI to provide a count of how many US person queries of 702-collected data it does, as well as a count of how many US persons get sucked up by Section 702 more generally.

Liza Goitein presented a very reasonable view of the efforts the privacy community is making to work with the government to come up with reasonable counts.

But no one mentioned the very easy count of US person back door searches that FBI could provide today.

As I noted when this was released, as part of last year’s 702 Certification process, Judge Thomas Hogan required FBI to report every time FBI reviews data on a US person query of 702 data that doesn’t pertain to National Security.

[Hogan] imposed a requirement that FBI “submit in writing a report concerning each instance … in which FBI personnel receive and review Section 702-acquired information that the FBI identifies as concerning a United States person in response to a query that is not designed to find and extract foreign intelligence information.” Such reporting, if required indefinitely, is worthwhile — and should have been required by Congress under USA Freedom Act.

But FBI can and presumably will game this information in two ways. First, FBI’s querying system can be set such that, even if someone has access to 702 data, they can run a query that will flag a hit in 702 data but won’t actually show the data underlying that positive return. This provides one way for 702-cleared people to learn that such information is in such a collection and — if they want the data without having to report it — may be able to obtain it another way. It is distinctly possible that once NSA shares EO 12333 data directly with FBI, for example, the same data will be redundantly available from that in such a way that would not need to be reported to FISC. (NSA used this arbitrage method after the 2009 problems with PATRIOT-authorized database collections.)

Plus, such reporting depends on the meaning of foreign intelligence information as defined under the Attorney General Guidelines.

FOREIGN INTELLIGENCE: information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorists.

It would be relatively easy for FBI to decide that any conversation with a foreign person constituted foreign intelligence, and in so doing count even queries on US persons to identify criminal evidence as foreign intelligence information and therefore exempt from the reporting guidance. Certainly, the kinds of queries that might lead the FBI to profile St. Paul’s Somali community could be considered a measure of Somali activities in that community. Similarly, FBI might claim the search for informants who know those in a mosque with close ties overseas could be treated as the pursuit of information on foreign activities in US mosques.

Hogan imposed a worthwhile new reporting requirement. But that’s still a very far cry from conducing a fair assessment of whether FBI’s back door searches are constitutional.

This requirement went into effect on December 4, 2015, and Hogan required updates on such reporting by January 27, 2016, so FBI is already reporting on this.

It would take minimal effort for ODNI to release how many of these notices got sent to FISC — it could do it quarterly so we didn’t learn too much from the process. Maybe there wouldn’t be any notices, though for a variety of reasons I doubt it. Maybe, as I note, the number is too fake to be useful.

But it is a number, one FBI is already required to report. So they should start reporting it.

Tuesday Morning: Garbage in, Garbage out

Why’d I pick this music video, besides the fact I like the tune? Oh, no reason at all other than it’s trash day again.

Speaking of trash…

Facebook furor just frothy foam?
I didn’t add yesterday’s Gizmodo piece on Facebook’s news curation yesterday or the earlier May 3 piece because I thought the work was sketchy. Why?

• The entire curation system appears to be contractors — Where is a Facebook employee in this process?
  

  “…News curators aren’t Facebook employees—they’re contractors. One former team member said they received benefits including limited medical insurance, paid time off after 6 months and transit reimbursement, but were otherwise excluded from the culture and perks of working at Facebook. […] When the curators, hired by companies like BCForward and Pro Unlimited (which are then subcontracted through Accenture to provide workers for Facebook), arrive at work each day, they read through a list of trending topics ranked by Facebook’s algorithm from most popular (or most engaged) to least. The curators then determine the news story the terms are related to.

  The news curation team writes headlines for each of the topics, along with a three-sentence summary of the news story it’s pegged to, and choose an image or Facebook video to attach to the topic. The news curator also chooses the “most substantive post” to summarize the topic, usually from a news website. […] News curators also have the power to “deactivate” (or blacklist) a trending topic—a power that those we spoke to exercised on a daily basis. …” (emphasis mine)

  I see a Facebook-generated algorithm, but no direct employees in the process — only curator-contractors.

• Sources may have a beef with Facebook — This doesn’t sound like a happy work environment, does it?
  

  “…Over time, the work became increasingly demanding, and Facebook’s trending news team started to look more and more like the worst stereotypes of a digital media content farm.

  […]

  Burnout was rampant. ‘Most of the original team isn’t there anymore,’ said another former news curator. ‘It was a stop-gap for them. Most of the people were straight out of [journalism school]. At least one of them was fired. Most of them quit or were hired by other news outlets.’ …” (emphasis mine)

  It’s not as if unhappy contractors won’t have newsworthy tips, but what about unhappy Facebook employees? Where are they in either of Gizmodo’s pieces?

• Details in the reporting reveal bias in the complainant(s) — So far I see one reference to a conservative curator, not multiple conservative curators.
  

  “Facebook workers routinely suppressed news stories of interest to conservative readers from the social network’s influential “trending” news section, according to a former journalist who worked on the project.

  […]

  Other former curators interviewed by Gizmodo denied consciously suppressing conservative news, and we were unable to determine if left-wing news topics or sources were similarly suppressed. The conservative curator described the omissions as a function of his colleagues’ judgements; there is no evidence that Facebook management mandated or was even aware of any political bias at work. …”

  Note the use of “a” in front of “former journalist” and “the” in front of “conservative curator.” (Note also Gizmodo apparently needs a spell check app.)

• No named sources confirming the validity of the complaints or other facts in Gizmodo’s reporting — Again, where are Facebook employees? What about feedback from any of the companies supplying contractors; did they not hear complaints from contractors they placed? There aren’t any apparent attempts to contact them to find out, let alone anonymous confirmation from these contract companies. There are updates to the piece yesterday afternoon and this morning, including feedback from Vice President of Search at Facebook, Tom Stocky, which had been posted at Facebook. Something about the lack of direct or detailed feedback to Gizmodo seems off.
• Though named in the first of two articles, Facebook’s managing editor Benjamin Wagner does not appear to have been asked for comment. The May 3 piece quotes an unnamed Facebook spokesperson:
  

  When asked about the trending news team and its future, a Facebook spokesperson said, “We don’t comment on rumor or speculation. As with all contractors, the trending review team contractors are fairly compensated and receive appropriate benefits.”

I’m disappointed that other news outlets picked up Gizmodo’s work without doing much analysis or followup. Reuters, for example, even parrots the same phrasing Gizmodo used, referring to the news curators as “Facebook workers” and not contract employees or contractors. Because of this ridiculous unquestioning regurgitation by outlets generally better than this, I felt compelled to write about my concerns.

And then there’s Gizmodo itself, which made a point of tweeting its report was trending on Facebook. Does Gizmodo have a beef with Facebook, too? Has it been curated out of Facebook’s news feed? Are these two pieces really about Facebook’s laundering of Gizmodo?

I don’t know; I can’t tell you because I don’t use Facebook. Not going to start now because of Gizmodo’s sketchy reporting on Facebook, of all things.

Miscellany
Just some odd bits read because today is as themeless as yesterday — lots of garbage out there.

• SAS Confidential: Unpacking @AcademicsSay, Part 1 (SAS blog) — This is just good fun and yet it’s an incredibly educational collection of insights into the creation of a popular microblog. Worth a read.
• Five Solomon Islands have sunk below sea level (CNN) — This climate change stuff isn’t bullshit. It’s affecting entire cultures with permanent displacement beginning now.
• FCC and FTC want security patches from wireless providers yesterday (CNET) — If not sooner. Maybe these patches would have been done already if these firms hadn’t needed to redirect resources to responding to USDOJ’s encroachment on encryption…
• Amazon’s new Video Direct goes after Google’s YouTube’s user-created videos (Investor’s Business Daily) — Amazon’s throwing out some monetary chum, too, offering to split a monthly pot of $1M among the creators of most popular videos. This could rock indie film distribution.

Skepticism: I haz it
As I read coverage about news reporting and social media leading up to the general election, I also keep in the back of my mind this Bloomberg report, How to Hack an Election:

As for Sepúlveda, his insight was to understand that voters trusted what they thought were spontaneous expressions of real people on social media more than they did experts on television and in newspapers. […] On the question of whether the U.S. presidential campaign is being tampered with, he is unequivocal. “I’m 100 percent sure it is,” he says.

Be more skeptical. See you tomorrow morning!