NSA Makes Pitch For Section 702 Approval While Its 702 Requests Aren't Being Approved By The Court

from the all-perfectly-lawful,-all-running-into-issues-during-approval dept

Section 702 — the statute that allows the NSA to collect internet communications and data in bulk — is up for renewal at the end of this year. The NSA, thanks to Ed Snowden, faced more of an uphill battle than usual when renewing Section 215 (bulk metadata collections). For the first time in its existence, the NSA ended up with a compromise (the USA Freedom Act), rather than a straight renewal.

The Intelligence Community appears to be trying to get out ahead of straight renewal opponents. The Office of the Director of National Intelligence has released a Section 702 Q&A at millennial watering hole Tumblr. By returning its own soft serve questions with canned talking points, the ODNI is hoping to show just how lawful its upstream collection is.

It also hopes to obscure something that’s been around since the 2008 FISA Amendments Act: backdoor searches. Other government agencies have had the ability to peruse the NSA’s collections, which were ostensibly gathered solely for national security use. The FBI is the most frequent backdoor searcher, seeing as it has rebranded as a counterterrorism unit over the past several years, which has allowed it to expand its surveillance capabilities and increase exploitation of the NSA’s data stores.

The ODNI’s Q&A document sort of admits this, but tries to downplay the implications of allowing a domestic law enforcement agency free access to national security-focused surveillance intake.

The government’s minimization procedures restrict the ability of analysts to query the databases that hold “raw” Section 702 information (i.e., where information identifying a U.S. person has not yet been minimized for permanent retention) using an identifier, such as a name or telephone number, that is associated with a U.S. person. Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information, although the FBI also may conduct such queries to identify evidence of a crime. As part of Section 702’s extensive oversight, DOJ and ODNI review the agencies’ U.S. person queries of content to ensure the query satisfies the legal standard. Any compliance incidents are reported to Congress and the FISC.

It still sort of sounds like a backdoor search, even with supposed strict oversight, but the ODNI adds a footnote claiming it isn’t:

Queries of Section 702 data using U.S. person identifiers are sometimes mischaracterized in the public discourse as “backdoor searches.”

Oh, that crazy “public discourse.” Won’t it get anything right? Here’s Emptywheel’s Marcy Wheeler to explain what the ODNI won’t.

While it’s true that NSA and CIA minimization procedures impose limits on when an analyst can query raw data for content (but not for metadata at CIA), that’s simply not true at FBI, where the primary rule is that if someone is not cleared for FISA themselves, they ask a buddy to access the information. As a result — and because FBI queries FISA data for any national security assessment and “with some frequency” in the course of criminal investigations. In other words, partly because FBI is a domestic agency and partly because it has broader querying authorities, it conduct a “substantial” number of queries as opposed to the thousands done by CIA.

Wheeler goes on to point to the Privacy and Civil Liberty Oversight Board’s (RIP) report on Section 702 as evidence of this common FBI practice. While the PCLOB mostly punted on Section 702, finding it to be less blatantly-unconstitutional than the Section 215 program, it still found the FBI perused raw NSA collections quite frequently, both for foreign intelligence information and evidence of criminal activity. The PCLOB was unable to assess how frequently these “none dare call it a backdoor” searches occurred because the FBI has no way of tracking how often it dips into the NSA’s collections. With no data and no reporting, it’s pretty disingenuous to claim there’s effective oversight over the Section 702 program.

Marcy Wheeler also noticed something unusual in the brand new FISC Section 702 report — newly-required by the USA Freedom Act. According to the numbers released by the FISA Court, zero 702 applications were approved in 2016.

Wheeler points out the process for Section 702 approval runs much like that of Section 215, with applications either being approved by the FISA court or sent back for fixes. Once approved, extensions can be requested, but only for up to 60 days at a time. As she notes, the last 702 submission wouldn’t have been able to coast through 2016 without a renewal.

The prior approval before last year was November 6, 2015, so it would only have had to have been extended 2 months to get into this year. So that seems to suggest there was at least a three month (application time plus extension) delay in approving the certifications for this year.

Note, too, that the report shows the only amicus appointed last year was Marc Zwillinger for a known PRTT application, so this hold up wasn’t even related to an amicus complaint.

In any case, this may reflect significant issues with 702.

The Snowden documents — along with some from other unidentified leakers — generated far more scrutiny of Section 702 than the NSA has ever experienced. It’s not tough to imagine at least a couple of FISA judges being surprised with the scope of what they were approving. The number of submissions is redacted, but the footnote attached makes it clear the government submitted more than one application. This span with zero approvals dates back to the middle of last year, so it’s been a bit of a dry run for the NSA.

The NSA has run into issues before with Section 702, the last time being in 2011, when the FISA court found the “upstream collection” of internet data to be “deficient on constitutional and statutory grounds.” The NSA obtained extensions and apparently modified the order until it reached the FISA court’s standards. This long delay between approvals could suggest the NSA is back in constitutionally-deficient waters, which definitely isn’t where it wants to be as the program heads for renewal.

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Comments on “NSA Makes Pitch For Section 702 Approval While Its 702 Requests Aren't Being Approved By The Court”

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Anonymous Coward says:

Deep State

I’m still hoping that Trump will aggressively take on the spy agencies, considering that they bit him in the ass several times already.

Though considering that Obama’s 2008 campaign promise to castrate the NSA turned out to be nothing but hot air, I won’t be holding my breath hoping that Trump will do anything different, despite his promise to severely trim the federal government. Presidents come and go, while agencies always grow.

Anonymous Coward says:

It’s not tough to imagine at least a couple of FISA judges being surprised with the scope of what they were approving.

No, it isn’t tough, but it is horrifying. If a judge does not understand the request he or she is approving, then the judge ought to freeze the request until he/she does understand it. Approving a request only to later be surprised at what was approved says the judge did not understand what was approved.

Anonymous Coward says:

Does anybody really believe it’s possible to have effective oversight of something so powerful? It’s like a child trying to stop their alcoholic father from drinking.

WE are supposed to be the oversight for government, but the power gap has gotten way out of hand. It’s kind of hard to oversee things that take place in a secret court. WhyTF do we have a secret court!? How are we supposed to know what they are doing is lawful? Just trust them? Who is held responsible when they find it has been used unlawfully? Not that it really matters what the law says when what they are doing is blatantly immoral.

Nothing that we do is private anymore. They have all our papers, all of our finances, and most of our thoughts. They have stripped us of our rights already. We just haven’t been told to our faces yet.

Median Wilfred says:

Law Enforcement shadiness

About the FBI and backdoor searches…

Isn’t the FBI supposed to be a shining example of good law enforcement? You join the FBI because you want to do good in the world via enforcing federal law, right?

Well, why does the FBI (and a lot of other law enforcement) always push the boundaries? It would seem that the 4th Amendment would prohibit backdoor searches with fairly plain language. Yet the FBI (and other law enforcement?) will do backdoor searches right up to getting a big fat court order not to do them, or having a law passed over their dead bodies (metaphorically! Blue Lives Matter!). It seems to me that civil liberties violations are a worse problem than a lot of the crimes the civil liberties violations “help” them apprehend. Except Terrorism of course. Those fuckers are SuperVillains!

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