A new factsheet by the NSA and FBI has laid bare ludicrous contradictions in how US intelligence agencies choose to interpret a law designed to prevent spying on American citizens, but which they use to achieve exactly that end.
- While noting that the law specifically bans the gathering of information on US citizens, it then defends both the gathering and retention of information on US citizens.
- While claiming that its procedures severely limit the amount of information that is gathered on individual US citizens, it claims to be unable to provide even an estimate as to how many US citizens' records are in its database.
- While noting it is illegal to specifically target US citizens using their personally identifiable information without a warrant, it then argues why it should be allowed to continue searching US citizens' personally identifiable information without a warrant.
- And while claiming that it does not use the law to undertake mass surveillance or bulk collection of information, it defends tapping the internet's backbone and gathering information where the claimed target of surveillance is neither the sender nor the receiver of the information.
The document even claims that it is surveilling US citizens for their own protection while at the same time claiming that it is not doing so.
The obvious and painful contradictions within the 10-page document [PDF] are testament to the very reason why the factsheet had to be prepared in the first place: Congress is threatening not to renew the legislation due to the intelligence agencies' willful misrepresentation of the law to perform the very activities it was designed to prevent.
FISA – the Foreign Intelligence Surveillance Act – was enacted in 1978 and authorizes US intelligence agencies to carry out electronic surveillance of foreign persons outside the US. It specifically prohibited surveillance of US citizens and foreign persons within US borders.
But in 2008, the FISA Amendments Act (FAA) was passed to recognize the modern realities of internet communications: that foreign intelligence targets were using networks based in the United States to communicate. The law gave the intelligence agencies the right to demand that US companies hand over their communications in the search for foreign intelligence.
In an effort to ensure that those searches were restricted to non-US citizens however, the FAA – which was re-authorized in 2012 and now needs to be re-authorized again before the end of 2017 – included various procedures, and checks and balances.
Somewhat inevitably however, those procedures – which remain almost entirely secret – and the check and balances – which have been shown to be ineffective at best – have been slowly undermined by the intelligence agencies to the extent that the FBI now routinely uses personally identifiable information of US citizens, such as an email or phone number, to search a huge database of gathered information if it suspects them of a crime carried out in the US.
That reality is the diametric opposite of what the law was intended to do – hence the ludicrous contradictions between what the intelligence agencies say the law authorizes and the everyday realities that they argue must be retained.
Walk me through it
The first eight pages of the 10-page document are largely accurate, giving a rundown of the law, its history and intentions, and the procedures and checks introduced. In fact, it is a useful and largely objective rundown of the issue.
On page four, the document gives some examples of where use of Section 702 have proven effective: gathering insights into the minds of high-level Middle Eastern government ministers; checking up on sanctions; identifying both terrorists and terrorist sympathizers and alerting other governments to them.
Of the five examples given (of course it's impossible to know how many real-world examples there are), only one covers an arrest on US soil: the case of Najibullah Zazi who was tracked after he sent an email to an al-Qaeda operative in Pakistan asking for help in making bombs. Zazi planned to bomb the subway in New York City but was arrested in 2009 before he had the opportunity to do so. He pled guilty in 2010 and was sentenced to life in prison in 2012. (It is worth noting, however, that Zazi was already under surveillance from US intelligence agencies thanks to his visits to Pakistan, so it's unclear what role the Section 702 data really played.)
The document carefully words some sections covering concern over how the law was being interpreted. As a result of Edward Snowden's revelations, lawmakers and civil society groups started asking precise questions and that resulted in the intelligence agencies releasing limited information about the process it goes through to obtain the rights to spy on people. The document paints the provision of that information as the intelligence agencies' "commitment to furthering the principles of transparency," when nothing could be further from the truth.
It also tries to paint a report by the Privacy and Civil Liberties Oversight Board (PCLOB) into US spying in positive terms. The independent board, the document claims, largely exonerated the intelligence agencies and "made a number of recommendations" that have "been implemented in full or in part by the government."
In reality, the board's report was a damning indictment of the agencies' effort to reinterpret the law to be able to spy on just about anyone. The recommendations that have been implemented "in part" cover the most important improvements, in particular the publication of the procedures that the agencies use in reaching determinations. These critical documents remain entirely secret.
The PCLOB also paid a high price for standing up to the NSA and FBI: they had their authority cut out from under them, the budget was slashed, and all but one of its five board members have either resigned or have not had their terms renewed. It is a shell of an organization that doesn't even answer its phone or emails.
It is on pages nine and 10 that the real issues appear however – where it addresses "702 issues that are likely to arise in the re-authorization discussion."
- Information gathered on US citizens
- Searches carried out on that database
- Internet backbone tapping
Despite the law specifically noting that US citizens and people within US borders cannot be spied on through Section 702, in reality the intelligence agencies do exactly that.
The explanation is that this information is "incidental" and is hoovered up as the NSA and others are gathering intelligence on others. The intelligence agencies claim that it affects very few US citizens and so Congress has persistently asked what that number is: how many US citizens are included in the 702 database?
The US House Judiciary Committee first asked that question a year ago – April 2016. There is still no answer.
This latest document notes: "The IC (intelligence community) and DoJ (Department of Justice) have met with staff members of both the House and Senate Intelligence and Judiciary Committees, the PCLOB, and advocacy groups to explain the obstacles that hinder the government's ability to count with any accuracy or to even provide a reliable estimate of the number of incidental US person communications collected through Section 702."
It says that the agencies are "working to produce a relevant metric" to inform discussions.
This is a transparent attempt to prevent a figure on the number of US citizens in the database from being revealed, because it would almost certainly undermine the core contention of the intelligence agencies: that their procedures prevent the unnecessary gathering of information on US citizens.