Here we go again. Glenn Greenwald’s latest overheated, over-long, deliberately confusing piece claims to reveal: The Top Secret Rules That Allow NSA to Use US Data Without a Warrant.
Notice the extravagant use of scare quotes.
Top secret documents submitted to the court that oversees surveillance by US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information “inadvertently” collected from domestic US communications without a warrant.
The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.
The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.
OK, keep digging through the turgid prose. Keep digging. Because eventually you get to this:
FAA warrants are issued by the Fisa court for up to 12 months at a time, and authorise the collection of bulk information - some of which can include communications of US citizens, or people inside the US. To intentionally target either of those groups requires an individual warrant.
Wait a minute — did Glenn Greenwald just debunk his own exaggerated claims? Why yes, he did.
To recap, what these rules show is a surveillance agency that is greatly encumbered by many layers of oversight and legal limitations. And even though the NSA can store information (Greenwald confuses “storing” with “using”) from US citizens collected inadvertently in the course of an investigation, that information is strictly limited, and anonymized, and if the NSA wants to investigate it further, they need an individual warrant to do so.
In other words, that headline borders on an outright lie.
The New York Times headline for this non-bombshell is much more accurate: Documents Detail Restrictions on N.S.A. Surveillance.
The documents, classified “Secret,” describe the procedures for eavesdropping under Section 702 of the FISA Amendments Act, including an N.S.A. program called Prism [Ed. note: that’s wrong, by the way - PRISM is not a “program”] that mines Internet communications using services including Gmail and Facebook. They are likely to add fuel for both sides of the debate over the proper limits of the government’s surveillance programs.
They offer a glimpse of a rule-bound intelligence bureaucracy that is highly sensitive to the distinction between foreigners and “U.S. persons,” which technically include not only American citizens and legal residents but American companies and nonprofit organizations as well. The two sets of rules, each nine pages long, belie the image of a rogue intelligence agency recklessly violating Americans’ privacy.
Bob Cesca’s piece is also on the mark, as usual: Greenwald Debunks Himself: NSA Targeting of a U.S. Citizen Requires a Warrant.
UPDATE at 6/21/13 2:43:34 pm
Reading over Greenwald’s piece again, I was struck by this section:
NSA minimization procedures signed by Holder in 2009 set out that once a target is confirmed to be within the US, interception must stop immediately. However, these circumstances do not apply to large-scale data where the NSA claims it is unable to filter US communications from non-US ones.
The NSA is empowered to retain data for up to five years and the policy states “communications which may be retained include electronic communications acquired because of limitations on the NSA’s ability to filter communications”.
When Greenwald writes “large-scale data,” what he’s actually talking about are the fiber optic lines that run into and out of the US, carrying most of the world’s international Internet and phone activity. Obviously it’s impossible to filter this vast amount of data in real time, and some information from US citizens is inevitably going to be collected.
But Greenwald elides the details of this and uses the vague term “large-scale data,” instead of what it is — international communications.
Also note that the entire system Greenwald is describing was explicitly designed to prevent abuse. “Must stop immediately” is about as strong a directive as you’ll ever see. If they have reasonable suspicion, then a US citizens’ data can be stored — but even then there are strong privacy regulations. It has to be anonymized and requires an individual warrant to be accessed or investigated further.
What more does anyone think needs to be done? Is there still a potential for abuse? Obviously yes, as in any human activity. But it’s clear that the system was designed to try to avoid it.