NSA Axes “About” Collection: Win for Privacy Advocates, Loss for Us All?

–by Taylor Henry

Abstract:

This article discusses the NSA’s recent policy change to its electronic surveillance program, under Section 702 of the FISA Amendments Act (FAA), to stop collecting electronic communications that are “about” its targets. This policy change should result in the collection of fewer communications that are purely between American citizens, but it also may have a detrimental effect on Section 702’s use as a counterterrorism tool.

Citations:

FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified in scattered sections of 50 U.S.C.); Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 10 (2014), https://www.pclob.gov/library/702-Report.pdf; Tim Cushing, NSA Makes Pitch for Section 702 Approval While its 702 Requests Aren’t Being Approved by the Court, techdirt (Apr. 27, 2017, 10:45 AM), https://www.techdirt.com/articles/20170424/16521837225/nsa-makes-pitch-section-702-approval-while-702-requests-arent-being-approved-court.shtml; Report of the Director of the Administrative Office of the U.S. Courts on Activities of the Foreign Intelligence Surveillance Courts for 2016, U.S. Courts (2016), http://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2016_final_0.pdf; Robert Chesney, Can NSA Drop “About” Collection Without Gutting “To/From” Collection?, Lawfare (Apr. 28, 2017), https://lawfareblog.com/can-nsa-drop-about-collection-without-gutting-tofrom-collection; Charlie Savage, N.S.A. Halts Collection of Americans’ Emails About Foreign Targets, N.Y. Times (Apr. 28, 2017), https://www.nytimes.com/2017/04/28/us/politics/nsa-surveillance-terrorism-privacy.html?_r=0; Press Release, NSA, NSA Stops Certain Foreign Intelligence Collection Activities Under Section 702 (Apr. 28, 2017), https://www.nsa.gov/news-features/press-room/press-releases/2017/nsa-stops-certain-702-activites.shtml; Statement of Elizabeth Goitein, U.S. House of Representatives Committee on the Judiciary (Mar. 1, 2017), https://judiciary.house.gov/wp-content/uploads/2017/02/Goitein-Testimony.pdf.

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Although most Americans recognize the name Edward Snowden, few are likely to recognize the name of a government program that is responsible for the collection of hundreds of millions of electronic communications per year. This program, Section 702 of the FISA Amendments Act (FAA), has recently undergone an abrupt and dramatic policy change that has significant consequences for the reauthorization of the FAA, which is set to expire in December 2017.

Section 702 is a complicated but crucial intelligence-gathering tool, as it authorizes electronic surveillance conducted by the National Security Agency (NSA). Essentially, the NSA collects the contents of electronic communications, including emails and text messages, where the “target” is reasonably believed to be a non-U.S. person located outside the United States. “U.S. persons” include U.S. citizens, U.S. permanent residents, and virtually all U.S. corporations. Therefore, the government cannot use Section 702 to intentionally spy on American citizens located in the U.S., or anyone located within the U.S., and the targeting must be done with the purpose of acquiring foreign intelligence information.

This statutory limitation has not shielded Section 702 from criticism by privacy advocates and national security experts. In reality, countless Americans’ communications are swept up in 702 collection, stored by the government, and can be “queried” by government agencies. This phenomenon is called incidental U.S. person collection. It can occur when a U.S. person is communicating with a non-U.S. person who has been targeted, or when two non-U.S. persons are discussing a U.S. person. Because a U.S. person was not intentionally targeted by the NSA, this collection is lawful under 702, and the information may be utilized by the government.

Another important aspect of the Section 702 program is querying. “Querying” occurs when a government analyst searches 702 collected data with identifiers, such as an email address. The most problematic aspect of 702 collection is arguably the FBI’s ability to query 702 data to find evidence of domestic crimes, which many privacy advocates have criticized as being a “backdoor loophole” around the Fourth Amendment warrant requirement. This is because a probable cause warrant is not required for electronic surveillance under Section 702.

Each year, the government provides the Foreign Intelligence Surveillance Court (FISC) with its targeting and minimization procedures, which FISC then approves. Unlike the warrants used by domestic law enforcement, 702 certifications are not individualized and are not required to meet any probable cause standard. FISC is only required to approve the targeting and minimization procedures.

The FISC releases the amount of certifications it grants each year. This year’s annual report disclosed that the FISC had not approved any 702 certifications yet, even though the current 702 certification had expired.  It wasn’t until a few days later that the New York Times reported that the FISC had been dragging its feet because the NSA had self-reported several inadvertent “compliance incidents.” In response to the FISC’s reluctance, the NSA announced that it would end a particularly controversial part of the 702 program: “about” collection.

“About” collection occurs when the NSA obtains communications where neither the sender nor receipt is a target of collection. “About” collection is controversial because of the relatively high risk that such collection will result in acquiring purely domestic communications. Neither the individual involved, nor the conversation held is required to be a target in order for the collection to be lawfully acquired by the NSA, so long as some part of the content of the communication mentions a target identifier. When put in context within the broad scope of Section 702–that it is not technically limited to counterterrorism efforts–“about collection” means that emails could be lawfully collected when they concern the “merits of [NAFTA] or whether the United States should build a wall along the border with Mexico,” simply because such conversations “relate[] to the conduct of foreign affairs.”

While this policy change sounds like a win for everyone, there is reason to be concerned by this change. Section 702 is a counterterrorism tool that is frequently used by the government. The NSA estimates that over 25% of its reports concerning international terrorism include information based on Section 702 collection. However, until this recent elimination of the “about collection,” the NSA had maintained that it was impossible to stop collecting “about” communications without eliminating a substantial amount of the “to/from” communications it seeks.

In its press release, the NSA noted that this limitation still exists, but that it is outweighed by privacy concerns. While some national security experts are concerned about how this change might lessen the effectiveness of Section 702 as a counterterrorism tool, this policy will certainly be a topic of discussion in Congress’ up

Obama’s Endgame for Military Detention at Guantanamo

—by Kyle Tucker

Source: President Barack Obama, Remarks by the President on Plan to Close the Prison at Guantanamo Bay (Feb. 23, 2016), https://www.whitehouse.gov/the-press-office/2016/02/23/remarks-president-plan-close-prison-guantanamo-bay.

Abstract:

President Obama announced that a plan was submitted to Congress to close down the detention facility in Guantanamo Bay, Cuba. The plan seeks to transfer some of the detainees to foreign countries and create a facility in the United States for those detained in the future.

***

On February 23, 2016, President Obama once again spoke of a plan to shut down the facility at Guantanamo Bay and relocate those detained there. The President has similarly tried to introduce a plan to close this facility in the past, but his efforts were opposed by Congress. Previously, Congress responded by imposing narrow restrictions on appropriations to block any executive attempt to shut the facility down. However, it is the belief of President Obama that America’s ongoing experience with the facility at Guantanamo has reached a turning point. Not only does the President believe the facility no longer adequately represents core American ideals, such as strict adherence to the rule of law and human rights, but he also is of the opinion that the facility undercuts the national security and counterterrorism efforts of the United States.

Even though this issue has divided many along partisan lines, both President George W. Bush and Obama were still able to influence the current nature of the facility at Guantanamo. For example, in his speech, President Obama emphasized that around 500 transfers from the facility to other countries occurred throughout the Bush Administration, and that he has been able to transfer 147 additional detainees. As a product of this cross-administration trend to transfer those detained at Guantanamo, 91 detainees are all who remain in the facility.

To continue this declining trend, the Department of Defense, working alongside the Office of Management and Budget, produced and submitted to Congress a four-part plan on behalf of the Obama Administration. First, the plan states that 35 detainees, whose transfers were already approved, will be transferred to certain countries for subsequent monitoring. With these transfers, the federal government will monitor them to ensure that the foreign countries have proper security measures in place. Second, the review process in place to determine if an individual’s detention is still necessary to national security will be accelerated for all of the remaining detainees. If detention is no longer required for an individual after the review board’s decision, the plan may allow that individual to be transferred to another country.

Third, the legal mechanisms previously in place will continue to be used for those detained under the law of war. For example, continued implementation of the military commissions process is one method to be utilized with the remaining detainees. However, the President’s plan seeks to make further changes to this process because of its cost and duration in individual cases. Furthermore, even though military commissions will continue to be an option for those detained on the battlefield, President Obama stated that the best route in the future for those detained outside of the battlefield would be to utilize Article III courts. Lastly, the plan focuses on finding a suitable location in the United States to hold detainees. The facility will house those to be tried by military commissions, those who cannot be transferred to another country, or those determined to be a significant threat to national security. Since the President will work alongside Congress to find a particular facility in the United States, the plan did not name a specific location.

Just like any proposal, especially one that has produced a strong partisan divide, its potential effect on the future of American national security is unknown and unpredictable. Any plan President Obama comes up with is conditioned upon the approval of Congress to cut the check and make his plan a reality. Regardless of its ultimate outcome, the legal issues arising from the President’s plan will produce a debate with the potential to reshape the future of American national security.