Over time, that technology-based differentiation fell apart. By the early twenty-first century, most international communications travelled over fiber optic cables and thus were no longer “radio communications” outside of FISA’s reach. At the same time there was a dramatic increase in the use of the Internet for communications purposes, including by terrorists. As a result, Congress’s original intention was frustrated; we were increasingly forced to go to the FISA Court to get individual warrants to conduct electronic surveillance of foreigners overseas for foreign intelligence purposes.
After 9/11, this burden began to degrade our ability to collect the communications of foreign terrorists. Section 702 created a new, more streamlined procedure to accomplish this surveillance. So Section 702 . . . extended the FISA Court’s oversight to a kind of surveillance that Congress had originally placed outside of that oversight: the surveillance, for foreign intelligence purposes, of foreigners overseas. This American regime imposing judicial supervision of a kind of foreign intelligence collection directed at citizens of other countries is a unique limitation that . . . goes beyond what other countries require of their intelligence services when they collect against persons who are not their own citizens.
The privacy and constitutional interests implicated by this program fall between traditional FISA and metadata collection. On the one hand we are collecting the full content of communications; on the other hand we are not collecting information in bulk and we are only targeting non-U.S. persons for valid foreign intelligence purposes. And the information involved is unquestionably of great importance for national security: collection under Section 702 is one of the most valuable sources of foreign intelligence we have. Again, the statutory scheme, and the means by which we implement it, . . . allow us to collect this intelligence, while providing appropriate protections for privacy. Collection under Section 702 does not require individual judicial orders authorizing collection against each target. Instead, the FISA Court approves annual certifications submitted by the Attorney General and the Director of National Intelligence that identify categories of foreign intelligence that may be collected, subject to Court-approved “targeting” procedures and “minimization” procedures.
The targeting procedures are designed to ensure that we target someone only if we have a valid foreign intelligence purpose; that we target only non-U.S. persons reasonably believed to be outside of the United States; that we do not intercept wholly domestic communications; and that we do not target any person outside the United States as a “back door” means of targeting someone inside the United States. The procedures must be reviewed by the Court to ensure that they are consistent with the statute and the Fourth Amendment. . . .
The concept of minimization procedures should be familiar to you by now: they are the procedures that limit the retention and dissemination of information about U.S. persons. We may incidentally acquire the communications of Americans even though we are not targeting them, for example if they talk to non-U.S. persons outside of the United States who are properly targeted for foreign intelligence collection. . . . But the incidental acquisition of non-pertinent information is not unique to Section 702. It is common whenever you lawfully collect information, whether it’s by a criminal wiretap (where the target’s conversations with his friends or family may be intercepted) or when we seize a terrorist’s computer or address book, either of which is likely to contain non-pertinent information. In passing Section 702, Congress recognized this reality and required us to establish procedures to minimize the impact of this incidental collection on privacy.
How does Section 702 work in practice? . . . Let’s say that the Intelligence Community gets information that a terrorist is using a particular email address. NSA analysts look at available data to assess whether that email address would be a valid target under the statute—whether the email address belongs to someone who is not a U.S. person, whether the person with the email address is outside the United States, and whether targeting that email address is likely to lead to the collection of foreign intelligence relevant to one of the certifications. Only if all three requirements of the statute are met, and validated by supervisors, will the email address be approved for targeting. . . .
Any communications that we collect under Section 702 are placed in secure databases, again with limited access. Trained analysts are allowed to use this data for legitimate foreign intelligence purposes, but the minimization procedures require that if they review a communication that they determine involves a U.S. person or information about a U.S. person, and they further determine that it has no intelligence value and is not evidence of a crime, it must be destroyed. In any case, conversations that are not relevant are destroyed after a maximum of five years. So under Section 702, we have a regime that involves judicial approval of procedures that are designed to narrow the focus of the surveillance and limit its impact on privacy. I’ve outlined three different collection programs, under different provisions of FISA. . . . In each case, we protect privacy by a multi-layered system of controls on what we collect and how we use what we collect, controls that are based on the nature and intrusiveness of the collection, but that take into account the ways in which that collection can be useful to protect national security. But we don’t simply set out a bunch of rules and trust people to follow them. There are substantial safeguards in place that help ensure that the rules are followed.
These safeguards operate at several levels. The first is technological. The same technological revolution that has enabled this kind of intelligence collection and made it so valuable also allows us to place relatively stringent controls on it. . . . Second, we have secure databases to hold this data, to which only trained personnel have access. Finally, modern information security techniques allow us to create an audit trail tracking who uses these databases and how. . . . And I want to emphasize that there’s no indication so far that anyone has defeated those technological controls and improperly gained access to the databases containing people’s communications. . . .
We don’t rely solely on technology. NSA has an internal compliance officer, whose job includes developing processes that all NSA personnel must follow to ensure that NSA is complying with the law. In addition, decisions about what telephone numbers we use as a basis for searching the telephone metadata are reviewed first within NSA, and then by the Department of Justice. Decisions about targeting under Section 702 are reviewed first within NSA, and then by the Department of Justice and by my agency, the Office of the Director of National Intelligence, which has a dedicated Civil Liberties Protection Officer who actively oversees these programs. . . . Finally, independent Inspectors General also review the operation of these programs. . . .
But wait, there’s more. . . . As I’ve said, the FISA Court has to review and approve the procedures by which we collect intelligence under FISA, to ensure that those procedures comply with the statute and the Fourth Amendment. In addition, any compliance matter, large or small, has to be reported to the Court. Improperly collected information generally must be deleted, subject only to some exceptions set out in the Court’s orders, and corrective measures are taken and reported to the Court until it is satisfied.
And I want to correct the erroneous claim that the FISA Court is a rubber stamp. Some people assume that because the FISA Court approves almost every application, it does not give these applications careful scrutiny. In fact the exact opposite is true. The judges and their professional staff review every application carefully, and often ask extensive and probing questions, seek additional information, or request changes, before the application is ultimately approved. Yes, the Court approves the great majority of applications at the end of this process, but before it does so, its questions and comments ensure that the application complies with the law.
Finally, there is the Congress. By law, we are required to keep the Intelligence and Judiciary Committees informed about these programs, including detailed reports about their operation and compliance mat
ters. . . . For example, when Congress reauthorized Section 215 in 2009 and 2011 and Section 702 in 2012, information was made available to every member of Congress, by briefings and written material, describing these programs in detail.
. . .
And make no mistake, our intelligence collection has helped to protect our Nation from a variety of threats—and not only our Nation, but the rest of the world. We have robust intelligence relationships with many other countries. These relationships go in both directions, but it is important to understand that we cannot use foreign intelligence to get around the limitations in our laws, and we assume that our other countries similarly expect their intelligence services to operate in compliance with their own laws. . . . [W]e have provided the Congress a list of 54 cases in which the bulk metadata and Section 702 authorities have given us information that helped us understand potential terrorist activity and even disrupt it, from potential bomb attacks to material support for foreign terrorist organizations. . . .
I believe that our approach to achieving both security and privacy is effective and appropriate. It has been reviewed and approved by all three branches of Government as consistent with the law and the Constitution. It is not the only way we could regulate intelligence collection, however. Even before the recent disclosures, the President [in a May 2013 speech] said that we welcomed a discussion about privacy and national security, and we are working to declassify more information about our activities to inform that discussion. In addition, the Privacy and Civil Liberties Oversight Board—an independent body charged by law with overseeing our counterterrorism activities—has announced that it intends to provide the President and Congress a public report on the Section 215 and 702 programs[.] . . .
This discussion can, and should, have taken place without the recent disclosures, which have brought into public view the details of sensitive operations that were previously discussed on a classified basis. . . . The level of detail in the current public debate certainly reflects a departure from the historic understanding that the sensitive nature of intelligence operations demanded a more limited discussion. . . . As the debate about our surveillance programs goes forward, I hope that my remarks today have helped provide an appreciation of the efforts that have been made—and will continue to be made—to ensure that our intelligence activities comply with our laws and reflect our values.
. . .
Robert S. Litt, General Counsel, Office of the Director of National Intelligence, “Privacy, Technology & National Security: An Overview of Intelligence Collection,” Remarks at the Brookings Institution, July 18, 2013 (references omitted).
Source: Office of the Director of National Intelligence, IC on the Record, http://icontherecord.tumblr.com/post/57724442606/privacy-technology-national-security-an.
4
U.S. House of Representatives,
Amash-Conyers Amendment Debate
This document provides excerpts from a July 2013 debate in the House of Representatives on a proposal to end the telephone metadata program disclosed by Snowden. Formulated as an amendment to the Department of Defense Appropriations Act of 2014, the proposal from representatives Justin Amash (R-MI) and John Conyers (D-MI) represented, at the time, the highest-profile legislative effort to prevent the U.S. government from collecting bulk telephone metadata on Americans. Passage of the amendment would have been a rebuke of the White House, FBI, NSA, and FISC for interpreting and using Section 215 to run the telephone metadata program. The arguments reveal a divided House of Representatives struggling to come to terms with what Snowden had disclosed and how the country should move forward. The House did not adopt the amendment, voting it down 217–205, but the close vote demonstrated that the telephone metadata program was politically vulnerable less than two months after exposure.
AMENDMENT NO. 100 OFFERED BY MR. AMASH
. . .
The text of the amendment is as follows:
At the end of the bill . . . insert the following new section:
SEC. ____. None of the funds made available by this Act may be used to execute a Foreign Intelligence Surveillance Court order pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) that does not include the following sentence:
This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls) that may be authorized to be collected pursuant to this Order to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).
. . .
Mr. AMASH. Mr. Chairman, . . . We are here today for a very simple reason: to defend the Fourth Amendment, to defend the privacy of each and every American.
As the Director of National Intelligence has made clear, the government collects the phone records without suspicion of every single American in the United States.
My amendment makes a simple, but important change. It limits the government’s collection of the records to those records that pertain to a person who is the subject of an investigation pursuant to section 215.
Opponents of this amendment will use the same tactic that every government throughout history has used to justify its violation of rights—fear. They will tell you that the government must violate the rights of the American people to protect us against those who hate our freedoms. They will tell you there is no expectation of privacy in documents that are stored with a third party. Tell that to the American people. Tell that to our constituents back home.
We are here to answer one question for the people we represent: Do we oppose the suspicionless collection of every American’s phone records?
. . .
Mr. ROGERS of Michigan. . . .
Mr. Chairman, I think the American people and, certainly, some well-intentioned Members in this Chamber have legitimate concerns. They should be addressed. We should have time and education on what actually happens in the particular program of which we speak.
I will pledge to each one of you today and give you my word that this fall, when we do the Intel authorization bill, that we will work to find additional privacy protections with this program which have no email, no phone calls, no names, and no addresses.
Fourteen Federal judges [serving on the FISC] have said, yes, this comports with the Constitution; 800 cases around the 1979 case [Smith v. Maryland, 442 U.S. 735 (1979)] have affirmed the underpinnings of the legality of this case—800. So 14 judges are wrong, and 800 different cases are wrong. The legislators on both Intelligence committees—Republicans and Democrats—are all wrong.
Why is it that people of both parties came together and looked at this program at a time when our Nation was under siege by those individuals who wanted to bring violence to the shores of the United States?
It is that those who know it best support the program because we spend as much time on this to get it right, to make sure the oversight is right. No other program has the legislative branch, the judicial branch, and the executive branch doing the oversight of a program like this. If we had this in the other agencies, we would not have problems.
Think about who we are in this body. Have 12 years gone by and our memories faded so badly that we’ve forgotten what happened on September 11?
This bill turns off a very specific program. It doesn’t stop so-called “spying” and other things that this has been alleged to do. That’s not what’s happening. It’s not a surveillance bill. It’s not monitoring. It doesn’t do any of those things.
What happened after September 11 that we didn’t know on September 10—again, passing this amendment takes us back to September 10, and afterwards we said, wow, there is a seam, a gap—was somebody leading up to the September 11 attacks who was a terrorist overseas, called a “terrorist,” living amongst us in the United States, and we missed it because we didn’t have this capability.
What if we’d have caught it?
>
The good news is we don’t have to what-if. It’s not theoretical. Fifty-four times this and the other program [Section 702 surveillance] stopped and thwarted terrorist attacks both here and in Europe—saving real lives. This isn’t a game. This is real. . . .
Think about the people who came here before us in this great body—Madison, Lincoln, Kennedy served here—and about the issues they dealt with and about the politics of “big” and of moving America forward while upholding . . . the general defense of the United States. . . .
Are we so small that we can only look at our Facebook “likes” today in this Chamber, or are we going to stand up and find out how many lives we can save?
Let us get back to the big politics of protecting America and of moving America forward. Soundly reject this amendment. Let’s do this right in the Intel authorization bill.
. . .
Mr. CONYERS. . . . Ladies and gentlemen of the House, this amendment will not stop the proper use of the PATRIOT Act or stop the FISA authorities from conducting terrorism and intelligence investigations. I’d never block that.
All this amendment is intending to do is to curtail the ongoing dragnet collection and storage of the personal records of innocent Americans. It does not defund the NSA, and it will continue to allow them to conduct full-fledged surveillance as long as it relates to an actual investigation.
Our joining together on this bipartisan amendment demonstrates our joint commitment to ensure that our fight against terrorism and espionage follows the rule of law and the clear intent of the statutes passed by this Congress. I urge my colleagues on both sides of the aisle to vote for this amendment.
The Snowden Reader Page 17