NSA Continues To Dodge 'Incidental Collection' Question, Wants Its 'About' Surveillance Program Back

from the petition-to-return-status-to-quo dept

It's been six years since Senator Ron Wyden first asked the Director of National Intelligence how many Americans' communications are being swept up "incidentally" in the NSA's Section 702 surveillance net. Six years later, he still doesn't have an answer.

Section 702 is up for reauthorization at the end of the year and there's still no information coming from the ODNI [Office of the Director of National Intelligence]. A group of Congressional reps is hoping to pry this info loose before the reauth, but the DNI's been able to hold Wyden off for six years, so…

A U.S. congressional committee on Friday asked the Trump administration to disclose an estimate of the number of Americans whose digital communications are incidentally collected under foreign surveillance programs, according to a letter seen by Reuters.

Such an estimate is "crucial as we contemplate reauthorization," of parts of the Foreign Intelligence Surveillance Act that are due to expire at the end of the year, House Judiciary Committee Chairman Bob Goodlatte, a Republican, and John Conyers, the panel's top Democrat, wrote in a letter addressed to Director of National Intelligence Dan Coats.

The new wrinkle here is going above the head of the DNI and straight to the President. Not that this is any more likely to force a number out of the NSA. The president is all for a clean reauthorization and troubling numbers about "incidental" domestic surveillance will only make that more difficult.

In fact, the DNI's top lawyer just finished telling a Senate committee it won't be turning in its long-overdue homework.

The intelligence community will not produce that number, acting General Counsel for the Director of National Intelligence Bradley Brooker told the Senate Judiciary Committee on Tuesday. Producing the number would take too much time and effort and potentially violate Americans’ privacy in the process, Brooker said, echoing comments DNI Dan Coats made earlier this month. The resulting number might also not be very accurate, he said.

So, that's where this stands now. The DNI promised to pull something together as the previous president headed out the door, but appears to have abandoned its minimal stab at minimal transparency now that the guy up top isn't nearly as interested in curbing the NSA's powers.

Speaking of which, the ODNI is asking to have the "about" collection put back into play, just weeks after the NSA "voluntarily" gave it up.

The panel of intelligence leaders also urged Judiciary Committee members not to restrict so-called “about collection,” in which intelligence agencies collect information from people who are not intelligence targets but mention those targets in emails and text messages.

This would appear to be aimed at Senator Dianne Feinstein's call to codify the end of the "about" collection, which would prevent the NSA from re-implementing it down the road. We haven't even gotten down the road and IC leaders are already trying to rollback the NSA's rollback.

We'll see if this latest move by Congress has any effect. Six years of Ron Wyden (and others) hammering this same question hasn't moved us much closer to seeing how much purely domestic surveillance the NSA engages in. In recent dodges by the new DNI, Dan Coats (in response to Wyden's questions) suggests the NSA is doing far more domestic dabbling than has been disclosed by everyone but the DNI (leaked documents, FOIA'ed court opinions, etc.) These are answers the public needs to have, but they're especially essential to those who will be handling the Section 702 reauthorization. Failure to produce these numbers or answer questions directly should weigh against the sort of reauth the DNI is seeking.

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Comments on “NSA Continues To Dodge 'Incidental Collection' Question, Wants Its 'About' Surveillance Program Back”

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28 Comments
stderric (profile) says:

Re: Re:

I actually tried to take this one seriously for a minute and try to figure out how it could possibly make sense (the "only being spied on if you know about it" part, not the "we’re being 100% honest about being mind-blowingly lazy" part). It would seem like there are only a few possible situations for how much data is incidental: a) The answer is "None"; b) The answer is "0.01%-99.99% of collected material."; c) The answer is "Everything. We literally ‘Collect It All’ on everyone."

If it’s a), they’d tell us in a second and demand a budget increase and our eternal worshipful silence. If it’s b), it wouldn’t matter if they told us, since nobody in particular could claim standing in court with total certainty. If it’s c), then, uh…

It’s c).

David says:

Re: Re: Re: Re:

I don’t see that anybody else made as succinct an argument than you, though.

And the reason it would harm people’s privacy would be that if it became public knowledge that they collect it all, everybody they need to curry favor with would come asking for dirt on whoever they want. And make no mistake: there are a lot of agencies and politicians that they want to keep supportive of their efforts, and as opposed to big corporations, their main bribe is information rather than money.

But frankly, it’s not all that surprising a conclusion. Check out the size of their Utah data center and its storage capacities. You don’t need that for collecting metadata about foreign communications with the U.S. It’s just completely out of scale for that.

Anonymous Coward says:

Re: Re: Re:

Of course it is C!

The problem for the intel agencies is… How do you KNOW what to collect, without looking at EVERYTHING to determine if it is something to be collected? You can’t, it all has to be inspected as much as possible!

Of course we could obey the constitution and require warrants for these collections, but where is the fun in that plus its inconvenient for those guys to have to wait around for those.

The Wanderer (profile) says:

Re: Re: Re:

I’m fairly sure their logic is something like:

* We can’t report how many of the communications which we have collected are from Americans unless we know which ones are and which ones aren’t.

* We can’t know which communications are from Americans unless we examine the communications in ways which would violate the privacy of whoever they belong to.

* If we don’t examine the communications, there is less violation of privacy than if we do.

* Therefore, requiring us to figure out which communications are from Americans amounts to requiring us to violate Americans’ privacy.

Daydream says:

Remind me: What does the NSA actually do with all the data it collects?

Does it do demographic research for economic purposes? Keep an eye out for potential outbreaks of disease? Monitor businesses and corporations to uphold worker’s rights, prevent human trafficking and other forms of exploitation?

Or do they just look for people who can easily be entrapped into ‘terrorism’ charges and look for targets overseas to assassinate with drone strikes?

Stan (profile) says:

NSA violating privacy

“Producing the number would… potentially violate Americans’ privacy in the process, Brooker said…”

Parsing this leads to two possibilities:
1) The NSA is seriously concerned about their practices in regard to privacy or
2) they are so maxed out with violating citizens’ privacy’s that they simply can’t violate any more at this time.

I wonder which one it is.

Hugh Jasohl (profile) says:

Collecting any and all until you have power

Imagine for a moment a scenario where a private citizen, not protected by congressional privilege or anything like that, has his data collected before he becomes senator. Any blackmail info would be included in that and would be grandfathered in once he was elected president. The people who held that blackmail would then have undue influence over the presidents actions. I wish this was a false scenario, but everything to allow it already exists.

Anonymous Coward says:

Why doesn’t Congress just not allocate any money to the NSA until the NSA does what Congress tells them to do?

Congress approves the budget, why bring the President into this?

Why? Because Congress doesn’t really want change, they just don’t want to look to bad. The President really doesn’t do much of anything (besides Tweet stupid crap all the time) but the one thing Trump does better than any president in the history of presidents, and that is keep people’s minds off of who really is pulling the strings.

Congress is the place where the blame should fall. They could change things, but they don’t want to.

Anonymous Coward says:

More importantly, especially given that “abouts” collection is currently not defined in a way that has any technical meaning, Feinstein should have followed up to ask about what “unintended consequences” Morris worried about. Morris’ comment leads me to believe my suspicion — that the NSA continues to do things that have the same effect as “abouts” collection, even if they don’t reach into the “content” of emails that are only a subset of the kinds of things that get collected using upstream collection — is correct. It seems likely that Morris wants to protect collection that would violate any meaningful technical description of “abouts.”

Which suggests the heralded “end” to “abouts” collection is no such thing, it’s just the termination of one kind of collection that sniffs into content layers of packets.

https://www.emptywheel.net/2017/06/28/when-nsa-talks-about-unintended-consequences-you-need-to-ask-a-follow-up-question/

That One Guy (profile) says:

"Tell you what..."

"You don’t want to hand over a simple set of numbers that should be trivially easy to collect, assuming you’re not just grabbing everything you can get your hands on, claiming it would be too much work, that’s fair. We can totally accept that as a valid excuse.

On the other hand, if we don’t know the impact of your actions on the american public we can’t support it, so in that case we’ll be forced to withdraw any and all funding you receive from the government that might be used for such activity, and the laws allowing said actions are certainly not getting renewed.

Just something to consider."

Personanongrata says:

Encryption is Your Friend, NSA is Not

It’s been six years since Senator Ron Wyden first asked the Director of National Intelligence how many Americans’ communications are being swept up "incidentally" in the NSA’s Section 702 surveillance net.

All American’s communications are being swept up "incidentally" in the NSA’s Section 702 surveillance net.

If NSA is not directly surveilling American communications it’s Five Eyes partners can/will take up the slack. No need for the federal court jesters comprising the Foreign Intelligence Surveillance Court to brake out their rubber stamps.

Face the facts people – every last bit/byte sent electronically on this planet is collected and stored by the criminals of the NSA or their Five Eye partners.

The US governments justification for NSA’s total world surveillance scheme is that it is watching for terrorists or spies (where were NSA’s super sleuths for the USSR’s collapse in 1991 or the attacks of September 11, 2001?).

This is a lie.

NSA surveillance is all about collecting tawdry bits/bytes for blackmail, industrial espionage and insider stock trading tips.

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