NSA Section 702 Q&A Glosses Over Incidental Collection Problems, Domestic Surveillance

from the mostly-true-and-mostly-misleading dept

As the clock winds down to the end of the year, the NSA (along with the FBI, CIA, and other government components with access to NSA collections) is hoping it won't have its internet surveillance programs limited in any way. So far, it's receiving plenty of help from the Senate Intelligence Committee, which has offered up a zero-reform package. (The House has its own version, which actually includes a few reforms, but it still leaves plenty of loopholes for domestic surveillance.)

To that end, the NSA has released a highly-misleading Q&A on Section 702 surveillance -- one that conveniently ignores its historic problems with incidental collection and the other authorities being renewed that actually do allow it to target US persons.

The NSA chooses to focus solely on Section 702 and the issue of targeting. But these focal points are misleading. The NSA has plenty of ways of obtaining US persons' communications without targeting them. On top of that, the NSA has a few options for targeting US persons that go completely unmentioned. And the FBI is allowed to target US persons for a number of reasons using NSA surveillance programs -- again, something the Q&A ignores completely.

Section 702 surveillance is done under Title VII, which also includes US person-targeting authorities like Section 704 and 705(b). Not much discussion has centered on these two authorities because they aren't used that often. But they do absolutely allow the NSA to target US persons, unlike Section 702.

But there are problems with Section 702's foreign-facing work as well. In addition to targeting adversaries, Section 702 also allows the NSA to target friendly foreigners, like high-ranking government officials. Even while remaining foreign-focused, the program has still swept up US persons' communications. Some of this "incidental" collection was eliminated when the NSA dropped its "about" email collection. But even with its voluntary move, the NSA is still sweeping up US communications inadvertently.

This is a boon for the FBI, which is allowed to perform backdoor searches on Americans for evidence of criminal activity. This isn't limited to terrorist activity or foreign crimes. The bill offered up by the Senate would actually expand the FBI's use of NSA collections by adding a number of new crimes to the list of search justifications.

The assurances offered by the NSA are false. Marcy Wheeler's impeccable takedown of the self-serving Q&A points out the disingenuousness of the NSA fielding its own softball questions.

Curiously, while the NSA doesn't address the disproportionate impact of 702 on Muslims, it does pretend to address the disproportionate impact on Asians or their family members — people like like Xiaoxiang Xi and Keith Gartenlaub. Q: Could the government target my colleague, who is a citizen of an Asian country, as a pretext to collect my communications under Section 702? A: No. That would be considered "reverse targeting" and is prohibited. Thanks to Ron Wyden, we know how cynically misleading this answer is. He explained in the SSCI 702 reauthorization bill report that the government may, conduct unlimited warrantless searches on Americans, disseminate the results of those searches, and use that information against those Americans, so long as it has any justification at all for targeting the foreigner. Effectively, the government has morphed the "significant purpose" logic from the PATRIOT Act onto 702, meaning collecting foreign intelligence doesn't have to be the sole purpose of targeting a foreigner; learning about what an American is doing, such as a scientist engaging in scientific discussion, can be one purpose of the targeting.

The NSA tops off its Q&A by (accurately) claiming it can't search 702 collections for US person information. But it does not point out other government agencies can -- and can do it with very little oversight. That's what the FBI does routinely but not once in the Q&A will you find any reference to outside agency data store access.

The NSA's pro-702 pitch may be factual, but only because it carefully excises all of the inconvenient facts -- ones that might cause more people to question the collection and data search procedures being renewed.

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Filed Under: domestic surveillance, mass surveillance, nsa, section 702