James Clapper's Office To Finally Reveal NSA's 'Incidental Collection' Numbers

Privacy

from the and-only-a-half-decade-since-it-was-first-asked! dept

Prior to the Snowden leaks making it unignorable, the NSA denied the incidental collection of Americans’ communications was much of a problem. Ron Wyden and Mark Udall were two of the few members of the NSA’s oversight willing to ask tough questions. One of the questions they asked — all the way back in 2011 — was how many Americans were spied on by the NSA’s programs. The answer may shock you cause uncontrollable eyerolling.

What’s never made sense is why the feds simply refuse to admit how many Americans they’ve spied on under the law. In the past, the Director of National Intelligence has basically told Wyden and Udall that he wouldn’t answer because he didn’t want to. But the latest answer really takes the insanity to stunning new levels. As initially revealed at Wired, the NSA has refused to answer claiming that, not only would it be too much work to figure it out, but that figuring it out would violate the privacy of Americans.

It’s a terrible answer. But it’s still better than the one the ODNI gave the senators earlier. Basically, James Clapper said it would be difficult to give the senators the information they sought because the NSA really didn’t want to hand over that information. Not “difficult” in the technical sense, but “difficult” in the “no desire to” sense.

A leaked document showed the NSA didn’t think incidental collection was a big deal. Slides from an internal presentation told analysts such collections were inevitable and not to worry about the reporting collected US persons’ communications to the Inspector General. Hence why the Inspector General felt it might take a bit of effort to collect this information: it never had collected or received this information previously.

As the re-up for Section 702 approaches, legislators are taking a renewed interest in these still-unrevealed numbers. And Clapper’s office has decided to comply:

“The timely production of this information is incredibly important to informed debate on Section 702 in the next Congress— and, without it, even those of us inclined to support reauthorization would have reason for concern,” said the letter signed by 11 lawmakers, all members of the House Judiciary Committee.

The letter was sent on Friday to National Intelligence Director James Clapper. It said his office and National Security Agency (NSA) officials had already briefed congressional staff about how the intelligence community intends to comply with the disclosure request.

There are more specifics to this, which make it more useful than the normal publicized internal memo swap. First, the legislators want this expressed in real numbers, not a meaningless percentage of the total Section 702 take. Second, the letter serves to “memorialize” Clapper’s agreement to not only hand over these numbers to legislators, but to the public as well.

This data should contain everyone swept up by PRISM or the NSA’s upstream collection — the latter of which pulls communications directly from domestic internet backbones. The upstream collection has no targets. Instead, it grabs everything it can (including audio communications) it can and sorts through it for targeted terms, as well as anything related to the targeted terms NSA analysts add to the filter.

The potential for incidental collection in either program is huge. So it may actually involve a bit of effort to collect this data. Of course, the effort put into this may also involve making the final numbers a bit more palatable by applying internal rules as to what should or shouldn’t be considered an incidental collection. Just as certainly as NSA collections are laundered (via parallel construction) before being introduced in court, one should expect the final incidental collection numbers to be purged of anything that might make them larger than the IC would like to admit publicly.

Filed Under: james clapper, mass surveillance, nsa, odni, ron wyden, section 702, surveillance