Moving on from parts I, II, and III and to the reasons inordinate focus on the national security surveillance’s foreign-sharing distracts from where the perceived rights, legal and ethical violations can and have occurred more often and with higher impacts.
Cross-Border Law Enforcement
U.S. has agreements (MLAs and MLATs,) of current concerns and touched upon in part II, that define processes and boundaries for submission and initiation of investigative/surveillance requests, presence, role, and actions of foreign investigators.
Culture, values, language, laws, perceptions, feelings and rules vary by country. MLAs and MLATs are of a cooperative nature and do not expand or extend the authority or jurisdiction of one country’s officials and agents into another.
To illuminate the complexity and increased margin of risk (remember III) lest break down the players and dependencies.
Laws & Processes
Requests are made through or copied to the State Department where mostly the FBI has Legal Attaches in embassies and consulates. More complex operations are conducted in conjunction with the Interpol or Joint Task Forces (JTF) for resource management and coordination purposes. Cases involving Transnational Criminal Organizations (TCO) and Foreign Terrorist Organizations (FTO) always involve multiple agencies in multiple countries with overlapping and at times, not aligned goals and interests in each jurisdiction (foreign and national.) They almost always include, to one or more degrees of participation, State, CIA, FBI, DEA, IRS, ATF, ICE and DOD. There is always a DOJ supervising United States Attorney. I have almost used up all my 3 letter words — may be I can come up with or save one with 4 letters for last when I run out!
The IC side of each agency gets to access NSA data through Title 50 and EO 12333, and direct raw data access post 2016 amended 12333. In addition to 12333 and 702 electronically sourced data sharing information which the ACLU is seeking (I), every agency’s data, NCIC, FACE, NGI-IPS and who knows what other 3-4-5-letter or hyphenated system, is accessible to cross-border operations where the processes and audit trails are regulation based, lax or non-existant.
Human Factors – Mission/purpose/goals, Culture and Incentives
Mission/purpose/goals, culture and incentives (lets call it MCIs 😱) play a larger role in the operational world than stated processes and rules that are not enforced. Each U.S. and foreign country department, agency, internal bureaucratic managers/teams and individual agents, and political interests have their on MCIs which may not be aligned or even at odds (alphanumeric double pun here.)
While closing the loop on the ACLU’s request, it is worth going a little bit out of information sharing focus (albeit still related if not immediately clear) to risk and impacts that are not necessarily and directly results of information sharing, and heck, it is just a stone’s throw away and near and dear to me. If it seems that I am pounding on law enforcement practices in general — that is not my intent. Not a blanket description of everyone, finger pointing or apologetic, it is not easy work and easy to criticize but neither a risk to ignore. Bear with me, forgive the sarcasm and humor, not apologetically speaking, and follow the threads and evidence-based examples under the Risk Quantification (not qualification) section.
The risk probability of misaligned interests are substantially higher in cross-border operations compared to domestic investigations. Even when fully compliant with the law and using validated TTPs, safeguards for rights and constitutional protections can be unintentionally or intentionally circumvented and violated.
Aligned MCI’s of justice, fairness, law and order, prevention of harm, protecting the innocent and doing the job are common goals. Quasi-aligned ones such as financial incentives, career advancement, enhancement of ego and stature exist in all organizations and manifest as friction or obstruction when directed against colleagues or institutions.
Unique to this operating environment is a lack of accountability (absent effective and often impossible monitoring,) and a presumption of virtue and good intent (a low probability/high impact risk category.) Risk impact is multiplied when there are warped values and intent such as preference or material support for a TCO or FTO (or DTO although there is no legal definition for that,) concealing criminal conduct and avoiding prosecution and liability, or just a psychopathic personality which is statistically normally distributed and more prevalent in various populations and circumstances.
The non-institutional human risk is not limited to domestics agencies and foreign partners but the type of work’s bread and butter: domestic and foreign confidential sources and informants that form an essential element of law enforcement work. Without CI/CSs agents and their supervisory hierarchies have no careers, budgets and are marginalized in their respective organizations. They can sit at their desks and cubes in a bureaucracy and pray, watch porn or fiddle while Rome burns — and some do — but at some point they have to justify themselves and show for headcounts, budgets, etc. Anyone who has seen workings of large bureaucratic organizations knows that much too well.
In regions where there is no significant crime, there is also no need for significant or increased policing, enforcement, more or even current budgets: the realities of supply and demand and having to justify using and competing for someone else’s (taxpayer) money. This can not be understated. Agents who have infiltrated an organization and turned others to informants and operatives are not passive surveillance and reconnaissance inanimate objects. On the least they need to maintain status quo or at the extreme they can and are competing to promote their people, increase influence and ultimately control of the organization.
An if you are a bureaucrat who likes to build an empire you need scary narratives and big and bad public enemies who are about impossible to catch to justify the personnel and budgets needed to get there. Absent an incoming stream of cases which exists in large cites and trouble prone areas, what self-preserving person is going to solve all of or their big cash-cow cases and put themselves out of business? Also remember multiple cases of firefighters who started fires and “solved the crimes” later to become heroes?
These relationships play well there but unlike local efforts where a CS/CI is controlled, OC or TO type are at times 2 way conduits, operatives or double agents.
Bouncing back to the information thread, personal information (e.g. name, birthday, image, social security number, home address, relations; financial data, investigative data, finger prints, habits, routines, psychographics and so on) finding their way into an untraceable world of criminals, terrorists and potential corruption where friendly and adversary nations also have their own operational and national security related MCI’s is far more serious than high level controlled sharing. It can dwarf identity theft, selling the data on the dark web or leaking, dumping by a teenage or a 400 lb obese adult, hacktivists in Russia or another malicious non-attributable actor in an out-of-reach nation or location.
The dependencies of law enforcement agents and supervisors can make them as much bitches of snitches and their other controllers in an area way out of their leagues that they have no experience in, trained or prepared for.
Why is it relevant? If you are concerned about spy agencies and folks pissing in some small proverbial pool or playground (no leak jokes or puns here) which is really an irrelevant distraction to them and with zero incentives, you should be really concerned about the harm potential of armchair spies (not all “intelligence” is equal) and talk militar-ese pussies who live, work in and depend on a world of rats, weasels and snakes.
Oh lordy going longer and deeper than expected again. Looks like I have to do another post. Meanwhile lots of interesting stuff to chew on. One quantification coming up — would you like to wash in down with a shake or just wash up … it is hot out there. (Part V)