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FRINFORMSUM 6/13/2014: Lawsuit reveals it’s Too Complicated for the NSA to Preserve its Surveillance Records, Core Transparency Measures left out of USA Freedom Act, and Much More.

June 13, 2014
Out #tbt document pick reveals details of Che Guevara's execution.

Out #tbt document pick reveals details of Che Guevara’s execution.

In response to a lawsuit brought by the Electronic Frontier Foundation (EFF) over its surveillance practices, the National Security Agency (NSA) is arguing that retrieving data collected under Section 702 of the Amendments Act to the Foreign Intelligence Surveillance Act is “too complicated.” NSA Deputy Director Richard Ledgett wrote in a court filing that, “A requirement to preserve all data acquired under section 702 presents significant operational problems, only one of which is that the NSA may have to shut down all systems and databases that contain Section 702 information,” prompting EFF legal director, Cindy Cohn, to say, “it demonstrates that once the government has custody of this information even they can’t keep track of it anymore even for purposes of what they don’t want to destroy.”

The EFF is also asking the Supreme Court to take part in a long-standing FOIA lawsuit in which the EFF is seeking the disclosure of the Department of Justice Office of Legal Counsel (OLC) memo authorizing the FBI to obtain call records without judicial approval. According to EFF Senior Counsel David Sobel, “If the Office of Legal Counsel has interpreted away federal privacy protections in secret, the public absolutely needs access to that analysis. There is no way for the public to intelligently advocate for reforms when we’re intentionally kept in the dark.”

Core transparency concerns have been neglected as Congress argues over definitions of surveillance in the USA Freedom Act. The weakening of the Act in the House, and the current fight over the bill in the Senate, has left the bill stripped of provisions initially intended to be crucial parts of it, including accurate reporting from the Foreign Intelligence Surveillance Court, providing “businesses the ability to release information regarding FISA requests, and creat[ing] an independent constitutional advocate to argue cases before the FISC.”

Microsoft is fighting a federal search warrant seeking information from a customer’s emails stored abroad. Microsoft argued in court that providing the information, currently stored in Dublin, “would violate international law and treaties, and reduce the privacy protection of everyone on the planet.” While the Justice Department argues that a Microsoft victory in the case would be “a dangerous impediment to the ability of law enforcement to gather evidence of criminal activity,” privacy advocates argue that the federal government should pursue other channels for the information, namely cooperative agreements called mutual legal assistance treaties, rather than a search warrant.

For the second year in a row, the Information Security Oversight Office (ISOO) is reporting that the number of reported new secrets is continuing to decline. ISOO also reported that, for the first time in a decade, ‘the number of “derivative classification decisions” in which previously classified information is incorporated into new records also declined.’ ISOO was unable to pinpoint a reason for the decrease, but stated, “possible contributing factors could be the recent emphasis on proper classification procedures coming from the expanded agency self-inspection requirements, the inspector-general reviews conducted in response to the Reducing Over-Classification Act, and the Fundamental Classification Guidance Reviews that all agencies conducted in 2012.”

Puma drone approved by the FAA for BP commercial flights.

Puma drone approved by the FAA for BP commercial flights.

The Federal Aviation Administration (FAA) announced Tuesday in a landmark decision that it was granting oil giant BP permission to be the first company to begin commercial drone flights over the US. Congress ordered the FAA to provide commercial drones access to US airspace by September 2015, but writing safety regulations for drones 55 pounds and lighter has slowed the agency’s efforts, and the FAA “is not expected to meet the deadline.”

Congressional leaders called the Navy’s latest plan for aircraft carrier-based drones “shortsighted.” Congress is taking issue with the Navy’s relatively conservative plan for its drones; asking contractors for reconnaissance drones that have “only limited ability to carry out bombing missions behind enemy lines.” Congress wants, on the other hand, “cutting-edge warplanes, stealthy drones that can attack key targets in contested areas… [and] could end aviation as the Navy has known it.” Congress halted funding for the Navy’s drone program until the Defense Department can complete a review.

A recent Government Accountability Office (GAO) report shows the Department of Homeland Security (DHS) is continuing to struggle “with planning and prioritizing its strategies,” and has failed to establish “strategic departmental intelligence priorities that can be used to inform annual planning decisions, such as what analytic activities to pursue and the level of investment to make, as called for in DHS guidance.” DHS agreed with both the reports findings and recommendations to fix the issues that were raised.

Abuse allegations prompted CBP to review its use of force. Photo: DON BARTLETTI/LOS ANGELES TIMES — MCT

Abuse allegations prompted CBP to review its use of force. Photo: DON BARTLETTI/LOS ANGELES TIMES — MCT

Abuse allegations and a rise in shooting deaths of unarmed civilians have prompted Customs and Border Protection (CBP), a DHS component, to fire its Internal Affairs director and review its protocol on use of force. This comes on the heels of a McClatchy report that “found that at least 21 civilians have been fatally shot by Border Patrol agents in the past four years, including a 16-year-old who was shot 10 times from behind as he walked along a street on the Mexican side of the border fence that separates Nogales, Arizona, from Nogales, Mexico.”

The House recently adopted an amendment to the FY2015 Commerce, Justice and Science Appropriations bill that will “provide a near-absolute shield for reporters against compulsory disclosure of their confidential sources.” The amendment was introduced by Rep. Alan Grayson (D-FL) and is intended ‘to be construed liberally and broadly, to effectuate its purpose of protecting journalists and their sources from any coercive action taken by the government and the legal system. Its spirit applies to other government agencies, and to litigation between private parties. The terms “information or sources” and “confidential” are to be given the widest possible construction.’

The latest posting from the Archive’s Nuclear Vault includes a newly declassified Sandia National Lab report on the 1961 Goldsboro nuclear accident. The report reveals both that by the time one of the multi-megaton Mk 39 bombs involved in the mishap hit the ground it was in the “armed” setting because of the impact of the crash, and that if the shock had not also damaged the switch contacts, the weapon could have detonated.

Finally this week, today’s #tbt document pick comes from a 2007 posting published to coincide with the auctioning off of macabre memorabilia of Che Guevara’s execution (to lone bidder and Houston bookstore owner, Bill Butler). The document is a June 3, 1975, CIA debriefing of Felix Rodriguez, aka Benton H. Mizones, who was the only CIA operative present at Guevara’s 1967 execution, and the person who informed Guevara he would be killed. After the execution, Rodriguez took Guevara’s Rolex watch and accompanied his body to the airport.

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