Tag Archives: safeguards

NSA clarification

I have written that we really didn’t know what was going on at the NSA. Well, this week we got some clarification.

From Kevin Drum:

Today, in the latest release of classified NSA documents from Glenn Greenwald, we finally got a look at these minimization procedures. Here’s the nickel summary:

The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.

I have a feeling it must have killed Glenn to write that paragraph. But on paper, anyway, the minimization procedures really are pretty strict. If NSA discovers that it’s mistakenly collected domestic content, it’s required to cease the surveillance immediately and destroy the information it’s already collected. However, there are exceptions. They can:

Retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.

The Guardian has posted two classified documents online. The first one describes the procedure for determining whether a surveillance target is legitimate (i.e., a non-U.S. person located outside the country). The second one describes the minimization procedures in case of inadvertent targeting of a U.S. person. There are a few obvious things to say about them:

  • The determination document repeatedly emphasizes that NSA bases its decisions on the “totality of the circumstances.” There are quite a few safeguards listed to make sure that only foreigners are targeted, but in the end these are often judgment calls from analysts.
  • The minimization procedures are fairly strict, but they do allow retention and disseminationof domestic data—without a warrant—under quite a few circumstances. “Threat of harm” is pretty broad, as is “criminal activity.” The latter, in fact, seems like a loophole the size of a Mack truck. It suggests that NSA could have a significant incentive to “inadvertently” hoover up as much domestic information as possible so it can search for evidence of criminal activity to hand over to the FBI.
  • The oversight procedures are pretty thin. Analysts have quite a bit of discretion here.

It’s genuinely unclear how big a problem this stuff is. It’s plainly true that determining whether someone is a U.S. person is sometimes a judgment call, and it’s possible that mistakes are rare. What’s more, if collection of domestic content genuinely is inadvertent, and is only occasionally turned over to other agencies when there’s evidence of serious crime, we should all feel better about this. But we really have no way of knowing. That would require, say, an inspector general to gather this kind of information, and the IG has specifically declined to do this.

Also, note that the documents posted by the Guardian are from 2009. It’s quite possible that procedures have changed since then.

(Editor’s note – for me the take-home lesson is there is still a lot that we don’t know.)

Russ Feingold on FISA compromise

Russ FeingoldFrom Russ Feingold:

The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have anticipated in the President’s illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration.”