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> - Specifies that any queries against this data must have documentation showing "reasonable articulable suspicion that the selector is associated with internat

> - Specifies that any queries against this data must have documentation showing "reasonable articulable suspicion that the selector is associated with international terrorism or activities in preparation thereof" (note that military/political/counter-espionage/etc. is not listed) This language only modifies FISA section 501, which pertains to bulk collection of business records (i.e. Verizon phone call data), and not 702 [1]. The amendment adds language explicitly allowing searching of US communications under 702, despite the section being titled "[p]rocedures for targeting certain persons outside the United States other than United States persons" and starting with "limitations: may not intentionally target a United States person". Although 702 has been used to target US citizens [2], the law doesn't reflect this usage -- yet. Here is the addition [3]: > A query of the contents of communications acquired under this section with a selector known to be used by a United States person may be conducted by ... the Intelligence Community only if the purpose of the query is to obtain foreign intelligence information or information necessary to understand foreign intelligence information or to assess its importance. And the loophole (a 2nd one is omitted here): > Nothing in this subsection may be construed to limit the authority of a law enforcement agency to conduct a query for law enforcement purposes of the contents of communications acquired under this section. This is the only part of the amendment that I read, and it looks a lot like swiss cheese already. 1. Section 702: http://www.law.cornell.edu/uscode/text/50/1881a http://www.law.cornell.edu/uscode/text/50/1881a 2. http://www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls http://www.theguardian.com/world/2013/aug/09/nsa-loophole-wa... 3. Section 6 of the amendment.

csandreasen 13y ago
You're right - most of this bill focuses more section 501. That's where most of the debate in Congress has been, as it specifically collects on US citizens. You have a good reason for concern on the section 702 parts, but I disagree on why. The part on section 702 doesn't authorize collection against US persons - it's strangely worded. "A query of the contents of communications acquired under this section with a selector known to be used by a United States person" - in other words, the collection must already be acquired in the documented pursuit of a valid foreign intelligence target under section 702 (b) [1]. The analyst can then search the collection for selectors known to be used by a US person. (EDIT: reworded for clarification) The bill goes on to say that this may only be done for the purpose of gathering foreign intelligence information and must be documented and reported to Congress, DoJ, FISC, etc. The concern here is that it may be a loophole to allow reverse targeting - collecting foreigner's communications not because the foreigner is interesting, but rather because the Americans that foreigner is in contact with are interesting. Personally, I'd like to see more language in the bill to address this. Your second loophole doesn't apply to the NSA (they're not a law enforcement agency), but is a concern for the FBI. It doesn't make much sense to me why it would be worded this way in her bill, since the potential loophole is addressed in Section 704 of the existing law: "No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the Attorney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this Act." I'd also like to address your targeting US citizens argument: Although 702 has been used to target US citizens [2], the law doesn't reflect this usage -- yet. That's a bold claim, and the evidence you provide doesn't seem to support that. I'm not saying that is hasn't necessarily happened, but the evidence isn't there. From the article you cite: "While the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data," the glossary states, "analysts may NOT/NOT [not repeat not] implement any USP [US persons] queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI [Office of the Director of National Intelligence]." ... The document – which is undated, though metadata suggests this version was last updated in June 2012 – does not say whether the oversight process it mentions has been established or whether any searches against US person names have taken place. I'd like to see a document showing specific examples of instances where 702 was used to target Americans and what the NSA's reason for doing so was. This shows a blurb saying that certain minimization procedures have been proposed, but have not been approved, so analysts are still not allowed to query against US persons. The article goes on to cite leaked minimization procedures [2]. Those procedures talk a lot about what to do if the NSA comes across US communications, procedures standardizing how to determine whether or not a selector belongs to a US person, what to do if an analyst finds out that they've inadvertently targeted a US person, what to do if a foreign target comes to the US, etc. There's a whole section in 702 detailing how minimization procedures are to established and updated (see section entitled "Judicial review of certifications and procedures") - the Attorney General and FISC both need to sign off. The blurb seems to fit with the bill that Feinstein is putting forward. It's anyone's guess as to whether the minimization procedures were approved by the courts and DoJ first and is being legitimized by the bill, or if the courts/DoJ said the law won't back up that interpretation and Feinstein is now trying to fill it in. [1] https://www.govtrack.us/congress/bills/110/hr6304/text https://www.govtrack.us/congress/bills/110/hr6304/text [2] http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-without-warrant http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-...
- socillion 13y ago
  > Your second loophole doesn't apply to the NSA (they're not a law enforcement agency), but is a concern for the FBI. Good to know, thanks. 702 doesn't allow intentional collection of US communications - intentional being a key part, as they are only required to minimize the amount of US communications collected. For example, the leaked minimization procedures includes "[t]he communications that may be retained include electronic communications acquired because of limitations on NSA’s ability to filter communications." The proposed amendment has no bearing on collection, but would allow querying of the data incidentally collected on US citizens under 702. "Reverse targeting" is explicitly disallowed by 702(b)(2): "may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States." From a 2012 Committee on Intelligence report: "[D]ue to the nature of the collection and the limits of the technology involved, it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under Section 702 authority." "Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession." http://www.emptywheel.net/2013/06/25/confirmed-nsa-does-search-section-702-data-for-particular-us-person-data/ http://www.emptywheel.net/2013/06/25/confirmed-nsa-does-sear...

csandreasen 13y ago

You're right - most of this bill focuses more section 501. That's where most of the debate in Congress has been, as it specifically collects on US citizens. You have a good reason for concern on the section 702 parts, but I disagree on why. The part on section 702 doesn't authorize collection against US persons - it's strangely worded. "A query of the contents of communications acquired under this section with a selector known to be used by a United States person" - in other words, the collection must already be acquired in the documented pursuit of a valid foreign intelligence target under section 702 (b) [1]. The analyst can then search the collection for selectors known to be used by a US person. (EDIT: reworded for clarification) The bill goes on to say that this may only be done for the purpose of gathering foreign intelligence information and must be documented and reported to Congress, DoJ, FISC, etc. The concern here is that it may be a loophole to allow reverse targeting - collecting foreigner's communications not because the foreigner is interesting, but rather because the Americans that foreigner is in contact with are interesting. Personally, I'd like to see more language in the bill to address this. Your second loophole doesn't apply to the NSA (they're not a law enforcement agency), but is a concern for the FBI. It doesn't make much sense to me why it would be worded this way in her bill, since the potential loophole is addressed in Section 704 of the existing law: "No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the Attorney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this Act." I'd also like to address your targeting US citizens argument: Although 702 has been used to target US citizens [2], the law doesn't reflect this usage -- yet. That's a bold claim, and the evidence you provide doesn't seem to support that. I'm not saying that is hasn't necessarily happened, but the evidence isn't there. From the article you cite: "While the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data," the glossary states, "analysts may NOT/NOT [not repeat not] implement any USP [US persons] queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI [Office of the Director of National Intelligence]." ... The document – which is undated, though metadata suggests this version was last updated in June 2012 – does not say whether the oversight process it mentions has been established or whether any searches against US person names have taken place. I'd like to see a document showing specific examples of instances where 702 was used to target Americans and what the NSA's reason for doing so was. This shows a blurb saying that certain minimization procedures have been proposed, but have not been approved, so analysts are still not allowed to query against US persons. The article goes on to cite leaked minimization procedures [2]. Those procedures talk a lot about what to do if the NSA comes across US communications, procedures standardizing how to determine whether or not a selector belongs to a US person, what to do if an analyst finds out that they've inadvertently targeted a US person, what to do if a foreign target comes to the US, etc. There's a whole section in 702 detailing how minimization procedures are to established and updated (see section entitled "Judicial review of certifications and procedures") - the Attorney General and FISC both need to sign off. The blurb seems to fit with the bill that Feinstein is putting forward. It's anyone's guess as to whether the minimization procedures were approved by the courts and DoJ first and is being legitimized by the bill, or if the courts/DoJ said the law won't back up that interpretation and Feinstein is now trying to fill it in. [1] https://www.govtrack.us/congress/bills/110/hr6304/text https://www.govtrack.us/congress/bills/110/hr6304/text [2] http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-without-warrant http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-...

socillion 13y ago
> Your second loophole doesn't apply to the NSA (they're not a law enforcement agency), but is a concern for the FBI. Good to know, thanks. 702 doesn't allow intentional collection of US communications - intentional being a key part, as they are only required to minimize the amount of US communications collected. For example, the leaked minimization procedures includes "[t]he communications that may be retained include electronic communications acquired because of limitations on NSA’s ability to filter communications." The proposed amendment has no bearing on collection, but would allow querying of the data incidentally collected on US citizens under 702. "Reverse targeting" is explicitly disallowed by 702(b)(2): "may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States." From a 2012 Committee on Intelligence report: "[D]ue to the nature of the collection and the limits of the technology involved, it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under Section 702 authority." "Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession." http://www.emptywheel.net/2013/06/25/confirmed-nsa-does-search-section-702-data-for-particular-us-person-data/ http://www.emptywheel.net/2013/06/25/confirmed-nsa-does-sear...