AP Acts As Extension Of Intelligence Community, Claims Section 215 Shutdown Will Hurt Investigation Of Recent Shooting

Over the weekend, the AP's Tom Bridis released a stupid, fearmongering article that disingenously tied the San Bernardino attacks to the expiration of the NSA's Section 215 bulk phone metadata program.

The U.S. government's ability to review and analyze five years' worth of telephone records for the married couple blamed in the deadly shootings in California lapsed just four days earlier when the National Security Agency's controversial mass surveillance program was formally shut down.

Under a court order, those historical calling records at the NSA are now off-limits to agents running the FBI terrorism investigation even with a warrant.

The post -- which runs for several hundred more misleading words -- was immediately attacked online by Marcy Wheeler and others who actually have been paying attention to the details surrounding the 215 program. Tom Bridis and the AP have covered these developments as well, but apparently felt it better to ignore previous knowledge in favor of spewing propaganda-ish ignorance.

Marcy Wheeler, who was unable to get Tom Bridis to admit any errors, much less sneak a few corrections into his asinine article, has a thorough debunking posted at Emptywheel.

[T]he real problem with this utterly erroneous article is that it suggests the “US government” can’t get any records from NSA, which in turn suggests the only records of interest the NSA might have came from the Section 215 dragnet, which is of course nonsense. Not only does the NSA get far more records than what they got under Section 215 — that dragnet was, according to Richard Clarke, just a fraction of what NSA got, and according to NSA’s training, it was significantly redundant with EO 12333 collection on international calls to the US, which the NSA can collect with fewer limits as to format and share more freely with the FBI — but there are plenty of other places where the FBI can get records.

So the AP didn’t mention all the ways FBI gets records on its own, and it didn’t mention the larger NSA EO 12333 bulk collection that NSA can share more freely with FBI.

But the article was useful for some very non-useful idiots. Presidential candidate Marco Rubio was one of the first to retweet the misleading article. Others like him are using this article as a way to push for a rollback of the recently-implemented reform.

The post would have us believe that the FBI won't be able to investigate this thoroughly or uncover future plots because it no longer has access to bulk phone records. This is completely untrue. It also would have us believe that the shutdown of the collection (as it were) will lead to further attacks in the future -- portraying one small (and ultimately expendable) part of the NSA's surveillance apparatus as an insurmountable loss to intelligence gathering.

Politicians with a domestic surveillance ax to grind are using this point to further their views. Rubio is only one of them. Tom Cotton, who tried to block the implementation of the USA Freedom Act, similarly seized the moment (and Tom Bridis' misleading article) to issue more bogus claims about the shutdown of Section 215.

On Wednesday two terrorists killed 14 innocent people and injured 21 in San Bernandino, California. The hours and days that follow an attack of this nature are critical to discovering its origins and thwarting other attacks. But the FBI has been forced to investigate this attack with one hand tied behind their back because our valuable NSA metadata program was shut down just days earlier.

"To put it simply: the deadliest terrorist attack in the United States since Fort Hood is now serving as the guinea pig in a giant experiment on our national security. It's a frightening and uncomfortable thought."

Once again, the narrative that the FBI has little to no access to phone records is pushed. As is pointed out in Wheeler's post, at the very minimum (if you believe everyone who has been completely wrong on this) the FBI has two years' worth of phone records it can look through, which covers the entire period the attackers were in the US. This may not cover Tashfeen Malik's overseas years, but then again, Section 215 was a domestic program. The NSA's many other surveillance programs would have gathered not just phone records, but internet history, email and other communications. That's if Malik was on its radar, which no one seems to have confirmed to be the case.

So, the FBI would be covered, even in the AP's metadatapocalypse scenario. Chances are, it has years and years of phone records to look through as it investigates this shooting. The NSA has already stated (in its latest FISA court appearance) that records of interest or previously disseminated (to the FBI, for example) will still be accessible by its analysts. Those records go back a minimum of five years. And other records not collected by the Section 215 program go back even further. Marcy Wheeler:

AP misstated how many years of records the FBI might be able to get, claiming it was just two, rather than 28 or more in the case of AT&T’s backbone, covering virtually the entire period during which the husband from the San Bernardino couple, Farook, presumably could speak.

Bridis' article so badly misstates the reality that it encourages theories about government intervention. Did someone nudge Bridis in this direction in hopes of turning public opinion against the recent 215 shutdown? It's hard to believe something this ridiculous would appear unbidden. But, on the other hand, there's no shortage of stupid out there while actual malice remains a far more limited commodity.

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