Dual Classification of Open Source Information


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Dual Classification of Open Source Information

 


The US Director of National Intelligence has stated that increasingly heavy use by spies of open source information requires classifying the information to cloak its use. This is exemplified by Anthony Shaffer, a former military spy, in an interview with Government Security News in September 2005 describing the early days of classifying open source information acquired from the Internet. Shaffer made a distinction between the use of open information for intelligence purposes, which had legal restrictions, and use of the information for military operations which did not have those restrictions. This may account for the reliance upon military intelligence to gather domestic information forbidden to spies, that is to classify such information as military in addition to its secrecy classification.  (The interview has been withdrawn from GSN but is available on Archive.org and mirrored on Cryptome.)

[Excerpts]SHAFFER:

When the information from LIWA arrived at Tampa, Scott Philpott and his team started looking at it critically, trying to figure out what this really meant; based on other classified databases and lawyer review. The lawyers started looking at the data as well for any legal issues regarding the fact that this information came from “open sources”.

GSN:

Even before anyone at Able Danger made the decision to try to share its findings with other agencies or departments?

SHAFFER:

Absolutely.

GSN:

Even while the data is still being gathered and analyzed?

SHAFFER:

Absolutely, because there were so many critical issues regarding this, simply because it dealt with open sources. When an intelligence officer, like me, looks at the data, does that somehow magically turn it into “intelligence”? That was the critical issue. Somehow, there is this interpretation that even open source information could be construed as intelligence information because of its use. If Tony Shaffer, intelligence officer, takes data off the Internet and I use it for a project does that make it “intelligence” and subject it to all of the rules that govern the oversight of intelligence information?

GSN:

Which legal organization within SOCOM is raising these questions?

SHAFFER:

We’re talking about the lawyers. All lawyers in DoD report back to the DoD General Counsel. There’s no exception to that. Therefore, it doesn’t matter if the lawyer sits in SOCOM or Defense Intelligence, they all report back to the General Counsel.

GSN:

How big is the group of lawyers sitting in SOCOM?

SHAFFER:

I don’t know the exact size of the shop. I suspect it is probably between eight to a dozen folks, for the headquarters itself.

GSN:

Do you remember how the battle over this issue began?

SHAFFER:

Oh, I do, because from Day One, they were worried about, “Where are you getting this data from? What’s the source of the data? This is open source. How can it be this detailed?”

There were a lot of interrogatives the lawyers were asking regarding the sourcing of the information. I had no problem ever with oversight and answering the hard questions. The concern was, again, this was open source, but are we somehow violating some U.S. person’s rights by the fact we’re bringing in [the information] and using it for intelligence purposes?

GSN:

Was it one of the staff lawyers or was it the head of SOCOM’s legal department that was the principal mover and shaker of this?

SHAFFER:

I don’t know that answer, but the lawyer assigned to Able Danger was the person who explained this to us.

GSN:

Was the resistance that you were getting to the methodology — we haven’t even gotten to the conclusions yet — driven largely by this individual lawyer or by his organization?

SHAFFER:

By the organization. I’m confident because I started getting problems with this issue back in my headquarters in D.C., through the DIA lawyers. I know they were talking to each other and it became a big issue that all the lawyers in DoD were talking about. One of the investigators currently looking into this, when I talked to him this last week, confirmed to having the same problems even now. What open source collection really means, and what level of oversight is appropriate to protect U.S. persons’ rights, even when intelligence officers look at stuff off the open Internet. The debate remains now.

GSN:

Did this issue get to the DoD general counsel?

SHAFFER:

Yes it did. I know for a fact that it did because I talked to the general counsel lawyer who was the oversight for this issue. I know for a fact that is was being looked at by the DoD general counsel.

GSN:

Did the General Counsel’s organization know about this matter?

SHAFFER:

Based on direct knowledge, I know they were looking at — and dealing with — all these issues because a subsequent operation, the nickname of the operation was Dorhawk Galley, which happened in the spring of 2001, before 9/11, I had to talk to the general counsel about the same set of issues, because this had to do with the Internet and U.S. persons and open source information. I personally briefed George Tenet on this and I briefed the National Security Council twice.

GSN:

On the issue of open sourcing?

SHAFFER:

On the legal set of issues regarding Dorhawk Galley, which were compatible to the issues we were facing for Able Danger.

GSN:

Can you summarize the legal argument barring the use of open source information against U.S. citizens or quasi-citizens?

SHAFFER:

There are two concerns. First, the government has to be careful about what information it puts on the open Internet because, obviously, if they put something out there, U.S. people can see it. Therefore, it has to be above board.

Second issue, comparing that information to anything else out there regarding open source information. If you put information out [on the Internet], you have the reasonable belief, that it’s not going to be protected. That’s my judgment. If you put something on the Internet, such as a blog statement, it isn’t protected, it’s open. Does the government have the right to look at that and the use it against you if they so choose? That is one of the fundamental issues. Because although it’s not protected, and it’s out there, does the government have the right to do something with it?

What can you look at and not look at regarding U.S. citizens? That was one of the issues we were dealing with regarding these open Internet searches, which the lawyers were concerned about.

GSN:

What kind of records would be referred to as on the open Internet?

SHAFFER:

For example, corporate records. Say a company talks about its business activities overseas and lists them. If I take that information, as an intelligence officer, and say “Gee, I may want to look at this for some intelligence operation down the road.” I take it, print it off and put it in a file. Any file I keep as an intelligence officer is subject to oversight.

GSN:

Say, for example, hoovers.com, which presents all kinds of corporate financial information, lists every overseas office of every U.S. publicly-traded company. Now, you look at this and say “Hey, there are 37 companies that have an office in Lagos, Nigeria.”

SHAFFER:

Right. You’re spot on.

GSN:

You’re saying that someone on the legal side of the intelligence community might have said, “We don’t even have the right to do that. You can’t gather that information off the Internet, which is publicly out there, and use it in an intelligence manner.”

SHAFFER:

You hit the nub of it, absolutely. That’s what they were concerned about.

GSN:

What was the Able Danger program’s response to that legal argument?

SHAFFER:

Well, we aren’t doing intelligence collection operations, we’re doing operational planning. Therefore, whatever we’re doing should not fall under intelligence guidelines.

GSN:

That was sort of a stretch, wasn’t it? Here you have this ultra-secret and important intelligence mission which you claim is happening under operational planning, but wasn’t that somewhat bogus?

SHAFFER:

No, it wasn’t bogus. It was the operational focus. The idea was that we were trying to use this information for purposes not of intelligence collection. Obviously, we wanted to do it to confirm or vet information, but I wasn’t using this to plan to go after some U.S. citizen. That was not the purpose.

The purpose was to look at linkages. That’s what we were doing. So, any given byte of information probably wouldn’t even have been looked at [individually] because it didn’t fit the criteria of our search. There was [vast amounts] of information. Out of all that, we’re only going to look for things that are relevant to the target, Al Qaeda.

If I take information off the Internet and put it into a file, I’m doing that electronically, with the database. That was the issue. You’re doing it electronically. The argument was, “When you take all this information off the Internet, how do you then protect U.S. citizen rights?” The lawyers were looking at all the information that was coming in. They had to vet everything. They were personally looking at it and had a validation process.

GSN:

What would they have pointed to and said, “This is a violation. We can’t allow you to do this”?

SHAFFER:

That’s where the whole issue comes in of lawyers saying, “You can’t look at these guys, who are suspected as being terrorists.” All this information is coming in. They had this vetting process. And then, all this information comes to us regarding these [suspected terrorists] who were here legally, as part of these data runs. But, the lawyers are now saying, “You can’t look at that. We’re going to put that in the ‘U.S person’ category that you can’t look at.”

There is a vetting process. They’re trying to protect U.S citizens’ rights. I briefed the general counsel on this. I briefed George Tenet on this. The problem was, where do you draw that line regarding protection of U.S. persons — between U.S. citizens, such as yourself, and these other folks who are here legally, but not technically deserving of the same protections? That’s the kernel of the issue.

 

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