Key Loophole Allows NSA To Avoid Telling Congress About Thousands Of Abuses

from the oversight! dept

As we've noted, one of the key claims by NSA surveillance defenders was that the program had strong oversight from Congress. However, with the revelations last week about thousands of abuses, it's become quite clear that this isn't true. Late on Friday, Rep. Jim Himes, who is on the House Intelligence Committee, claimed that he was unaware of those violations, was told that there were "no abuses" and that these kinds of abuses are unacceptable:
Remember, this isn't just a Congressional Rep, but a member of the Intelligence Committee, who is in charge of overseeing the NSA surveillance program. Hell, he's even on the oversight subcommittee, and no one told him about any abuses, despite thousands happening per year. That's astounding, and highlights how the claims of Congressional oversight are clearly bogus. Furthermore, it makes a mockery of the statement that House Intelligence Committee chair Mike Rogers put out on Friday, claiming that "The Committee has been apprised of previous incidents." Himes says that's completely untrue.

How is this happening? Marc Ambinder explains the "loophole" that the NSA has used to avoid telling Congress about these abuses. It's a bit convoluted, but basically, the NSA believes that Congressional oversight only covers spying done under FISA -- the law that covers any spying done on Americans, for which a court order is needed. FISA doesn't cover spying on non-US persons (i.e., foreigners who are outside the country at the time of surveillance). And that's where some of the abuses came in, and the NSA believes that since those aren't "FISA" related, and Congress is only overseeing "FISA," they don't have to report those mistakes.
Since the focus of oversight efforts has been on FISA compliance, NSA gives Congress detailed narratives of violations of the FISA-authorized data sets, like when metadata about American phone records was stored too long, when a wrong set of records was searched by an analyst or when names or “selectors” not previously cleared by FISA were used to acquire information from the databases. In these cases, the NSA’s compliance staff sends incident reports to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence for each “significant” FISA violation, and those reports include “significant details,” the official said.

But privacy violations of this sort comprise just one third of those analyzed by the inspector general. Of the 2,776 violations reported by the NSA from May 2011 to May 2012, more than two-thirds were counted as E.O. 12333 incidents. And the agency doesn’t provide Congress detailed reports on E.O. 12333 violations.
Now, you can argue these are very different circumstances, but Ambinder points out that's not really true in many cases:
In some ways, it’s a distinction without a difference: it does not matter to U.S. citizens whether their phone call was accidentally intercepted by an analyst focusing on U.S.-based activities or those involving a foreign country. But the difference is relevant as it keeps Congress uninformed and unable to perform its oversight duties because the NSA doesn’t provide the intelligence committees with a detailed narrative about the latter type of transgressions.

For example, if someone’s e-mails were inadvertently obtained by the NSA’s International Transit Switch Collection programs, it would count as 12333 error and not a FISA error, even though the data was taken from U.S. communication gateways, and NSA would not notify Congress.
So, basically, any "error" that involves spying on Americans doesn't "count" as an abuse, as far as the NSA tells Congress (who keep claiming they're in charge of oversight), because they "obtained" it outside the US, and the "error" is considered outside of FISA. That's a pretty massive loophole through which the NSA can hide its abuse of programs from Congress.


Reader Comments (rss)

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    Nick (profile), Aug 19th, 2013 @ 8:37am

    These kind of loophole remind me of the "draft" legislation written by lobbyists who would benefit from a continuation of the current and expanding Patriot Act. What companies would benefit from this (Booz Allen Hamilton? Lockheed Martin?) and who in Congress is on their "payroll"?

     

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    Zakida Paul (profile), Aug 19th, 2013 @ 8:38am

    Oversight is a dirty word in intelligence circles. It means they can't get away with anything.

     

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  • This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Aug 19th, 2013 @ 8:46am

    Going to be another day of all-NSA Masnicking, eh?

    And where are the minions? Are they revolting? (I'll say they are!)

     

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      Anonymous Coward, Aug 20th, 2013 @ 4:48pm

      Re: Going to be another day of all-NSA Masnicking, eh?

      If a post is flagged it will only drag more attention to it, even if it's a troll like you I will just read it. Streisand Effect inside Techdirt...

       

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    TaCktiX (profile), Aug 19th, 2013 @ 8:55am

    Every single time Congress, someone in the Intelligence community, or the President has said anything about this whole snafu, we immediately notice it's doublespeak. Then shortly thereafter their doublespeak is directly exposed by a story that contradicts what they stated.

    You'd think they would learn by now that being honest, truly transparent, and committed to changing the status quo is the only true way forward.

     

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    John Fenderson (profile), Aug 19th, 2013 @ 8:58am

    It't the same

    This is exactly the same loophole they use to lie to us as well. They make statements that pertain to one exact program in a way that implies they're talking about spying in general. "We don't listen to phone calls" doesn't mean they don't listen to phone calls. It means they do that under a different program entirely.

     

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    saulgoode (profile), Aug 19th, 2013 @ 9:08am

    2,776 violations less two-thirds still doesn't get us down to the zero violations reported to Congress.

     

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    Anonymous Coward, Aug 19th, 2013 @ 9:20am

    The abuses are caught by logging the queries. What is logged and what isn't logged is decided by General Alexander. So he will have versions of the query tool that log nothing.

    Find the tool with logging disabled and you've found why he's afraid of 90% of his admins. He'll be trying to keep the 10% loyal to him.

     

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      John Fenderson (profile), Aug 19th, 2013 @ 11:52am

      Re:

      The abuses are caught by logging the queries.


      No, abuses are caught by someone reviewing the cases. Logging queries provides more data that can be used for such a review, but logging (anything) all by itself catches nothing.

       

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    Brent Ashley (profile), Aug 19th, 2013 @ 9:52am

    cart before the horse

    I've said it here before, the rule they use to justify their actions is selected wayyy after they decide to do whatever it is. They are going to do it anyway, loophole or not.

    It's not the loophole's fault that it's happening, it's just the excuse they are using. They would just find another loophole or lacking that simply tell you there is a secret law authorizing it that you're not allowed to ask about.

     

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    Anonymous Coward, Aug 19th, 2013 @ 10:13am

    How a member of congress, a politician no less, used to the most hostile environment to thruthiness on earth is so gullible as to accept the word of others that there is NO FUCKING INCIDENTS happening.

    Is he stupid? in every job I ever held there always was incidents of some kind or another and always where there were none if people cared to look around there was someone hiding them for one reason or another, now I cannot believe a politician is that stupid, or is this stupidity being used to disguise dishonesty?

    I cannot say, what I am sure of, is that any semblance of trust I had or willful blindness I would apply is gone now.

     

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      nasch (profile), Aug 20th, 2013 @ 1:00pm

      Re:

      How a member of congress, a politician no less, used to the most hostile environment to thruthiness on earth is so gullible as to accept the word of others that there is NO FUCKING INCIDENTS happening.

      Seriously, I wouldn't believe it of a copier repair company, and he takes the word of a spy organization? What a moron.

       

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    Wolfy, Aug 19th, 2013 @ 10:20am

    And we're still not allowed to ask how much this is costing us, either.

    Truly incredible.

     

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    Anonymous Coward, Aug 19th, 2013 @ 1:18pm

    To work for the NSA you have to speak English 2. It looks the same as English 1, even has the same words, spelled the same way. It's just those words have different meanings.

    There is something in this that really disturbs me beyond the fact they are lying. What it is, is this stretching of meanings of words, requirement of oversight and what's to be done, along with 'we can't tell you what we see the law as saying', all points not just to a NSA gone crazy but to a government as well as and executive branch using the same mental tricks.

    You see it in the EFF's attempt to get to the bottom of what gives the NSA the power to spy. Obama and the DOJ promptly claim National Security. That little maneuver has been used to death over and over in court. It's now coming down to that's how the country is run. "Trust us, it's too complicated to explain, and we are looking out for the public's interest".

    Pesoli's little speech about Obamacare before the vote is a good example. Don't have time to read the bill but vote for it, you'll like what's in it.

    My point is there is a lot going on in Washington these days that could use the exposure of sunlight.

     

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      nasch (profile), Aug 20th, 2013 @ 1:02pm

      Re:

      There is something in this that really disturbs me beyond the fact they are lying. What it is, is this stretching of meanings of words, requirement of oversight and what's to be done, along with 'we can't tell you what we see the law as saying', all points not just to a NSA gone crazy but to a government as well as and executive branch using the same mental tricks.

      I might feel a little better if they just said "yeah we screwed that up. We're working on new processes to make sure it doesn't happen again". Instead we get an explanation of why they're allowed to pull the wool over Congress' eyes, as though they think they're not doing anything wrong. The fact that they may actually believe they're not doing anything wrong is pretty scary.

       

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    Anonymous, Aug 19th, 2013 @ 2:55pm

    It's not a loophole, it's a feature.

     

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