FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

Steven Aftergood suggests there’s disagreement among Senate Intelligence Committee members about whether or not the FISA Amendments Act allows the government to get US person content without a warrant.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

I don’t think there is a conflict. Rather, I think DiFi simply responded to Wyden and Udall’s assertions with the same spin the government has used for some time. That’s because DiFi is talking about “targeting” and Wyden and Udall are talking about “searching” US person communications.

DiFi quotes much of the language from Section 702 earlier in her statement on FAA, repeating, repeating the word “target” three times.

In enacting this amendment to FISA, Congress ensured there would be important protections and oversight measures to safeguard the privacy and civil liberties of U.S. persons, including specific prohibitions against using Section 702 authority to: “intentionally target any person known at the time of acquisition to be located in the United States;” “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;” “intentionally target a United States person reasonably believed to be located outside the United States;” or “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” As an additional measure the law also requires that an acquisition under Section 702 “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” [my emphasis]

Her specific retort to the problem Wyden and Udall differentiates clearly between “querying information collected under Section 702 to find communications of a particular United States person” and “conduct[ing] queries to analyze data already in its possession” and “targeting.”

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. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. 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. The Department of Justice and Intelligence Community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures and do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA. [my emphasis]

Which not only makes it crystal clear that the government can access communications after it has been collected, but that they have done so.

Though the difference between what DiFi describes–“querying data”–and what Wyden and Udall describe–“search[ing] for the communications” of particular American citizens–is telling.

We have concluded, however, that section 702 currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens.


Since all of the communications collected by the government under section 702 are collected without individual warrants, we believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.a

Section 702, as it is currently written, does not contain adequate protections against warrantless “back door” searches of this nature. We offered an amendment during the committee’s markup of this bill that would have clarified the law to prohibit searching through communications collected under section 702 in an effort to find a particular American’s communications.

What DiFi describes sounds like data mining; what Wyden and Udall describe sounds like using the huge amount of data collected in the name of foreign intelligence to collect enough data such that US person communications are there if you ever want or need it. And their proposed amendments–both voted down in committee–also use the words, “review” and “contents,” making it clear the government is accessing US person communications and reading it.

Then again, there has been little doubt that’s what the government is doing since the bill passed. When Michael Mukasey and Mike McConnell issued veto threats against Russ Feingold amendments that would prevent this kind of search, it become clear that’s what the intelligence community intended to do with the bill. And when the government submitted a thoroughly duplicitous court filing in Amnesty v. Clapper–wielding the word “target” the same way DiFi did, but also ignoring the clause on intentionally collecting US person data–it became clear the government doesn’t want to talk about collecting US person communications.

This is not a dispute. DiFi hides behind that word “targeting,” which she knows well doesn’t do anything substantive to prevent the government from reading American communications without a warrant. But both she and Wyden and Udall make it clear the government is using the data it collected in the guise of foreign intelligence to get to US person communications.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

23 replies
  1. MadDog says:

    It’s been clear for a long time that the non-individualized warrant approach to vacuuming up communications by the NSA means that:

    1) The overwhelming majority of such communications collected are unrelated to and innocent of any terrorism nexus.

    2) Due to the stateless nature of internet communications transport and routing these days, there is no doubt that communications of US persons are inherently a part of the massive data collection.

    The semantic battle between the likes of DiFi and the IC on the one hand, and Senators Wyden and Udall on the other hand, should send a chill through every American’s heart, but alas, instead it is likely to bore them to tears.

    The day that the US government arbitrarily decided for itself and declared that using computer programs to read and sift through electronic communications was not an invasion of privacy as described in the 4th Amendment, that day was when all was lost.

  2. liberalrob says:

    Well, everyone knows that the Intertubes are a wretched hive of scum and villainy, so what’s the big deal? Law-abiding citizens have nothing to worry about, right?

  3. joanneleon says:

    @MadDog: Nobody, or hardly anybody, ever puts this information out to the American people in layman’s terms. I’d be willing to bet that at least half the people in this country don’t know that every one of their communications is being vacuumed up and saved by the government.

  4. MadDog says:

    @joanneleon: They’re too busy being seduced by taking pictures with their iPhones (exact GPS coordinates of the picture-taker’s location embedded in the metadata) or downloading and running the latest “cool” app for their iPads (ditto on the GPS coordinates plus it automatically secretly uploads the data to be sold to anyone and everyone).

    It hasn’t slipped past me that an Apple was the original forbidden fruit.

  5. What Constitution? says:

    And on the truly positive side… in the future, since everything will be preserved, there will be ample historical data available to allow some grad student quantitatively to test the thesis that “most men lead lives of quiet desperation.” So we got that goin’ for us, which is nice.

  6. pdaly says:

    Is there any way to build a Potemkin America complete with computers containing fake aggregated data? This way we could shuffle Feinstein and her like-minded data miners off the political stage–and they would be none the wiser, while “controlling” and eavesdropping on an artificial nation to their hearts’ content.

    Where DO they meet to agree on a playbook? How do they keep their details straight and silence dissent among the willing ranks?

  7. MadDog says:

    @pdaly: I’ve often wondered when someone like Occupy Wall Street or other nascent progressive movements would figure out that they could drown the National Security State in false positives by flooding the Internet with communications containing the National Security State’s computer program tripwire terms.

    Millions of electronic communications with words like “nuclear weapon” and suchlike generating National Security State computer hits which then must be each individually examined and investigated by National Security State human drones.

    It would make the National Security State’s claim to enjoy drinking out of the firehose of electronic communications into the electronic equivalent of waterboarding.

  8. MadDog says:

    OT – I’m guessing some have already seen this (EW tweeted about it), but in case anyone missed it, a monster US drone crash via CNN:

    Navy drone crashes in Maryland

    “A U.S. Navy drone crashed Monday in a marsh near Salisbury, Maryland. The RQ-4A Global Hawk drone crashed during a routine training flight from Naval Air Station Patuxent River, according to Jamie Cosgrove, a spokeswoman for the Unmanned Aviation and Strike Weapons Program at the base…


    …The basic RQ-4A Global Hawk UAV, manufactured for the U.S. Air Force by Northrop-Grumman, is the largest and most advanced drone in the U.S. military, according to the Navy. It is 44 feet long, has a 116-foot wingspan and weighs 25,600 lbs…”

    (My Bold)

    And the Congress has ordered that these monsters should have unlimited access to fly anywhere throughout the nation’s airspace.

    Nothing like having something the size of a school bus come crashing down on your head out of the sky.

    Can you say accidents waiting to happen? I thought you could.

  9. pdaly says:


    I forget where I read that if you include “Viagra” in an email that the intelligence community computers actively avoid collecting it for the sake of keeping databases unclogged.

    Not sure if that is urban legend, or past problem now overcome by a ‘vacuum it all up’ approach.

  10. pdaly says:


    That drone’s weight seems extremely heavy. If that’s heavier than a light aircraft’s weight, what could it possibly be carrying?
    Lead lined walls containing nuclear weapons?
    Illegal immigrants?
    Gold bars for state governors and banksters?

  11. MadDog says:

    I don’t know whether this will have any effect or not (probably not), via the AP:

    Senator wants scrutiny of surveillance law

    “A Senate Intelligence Committee Democrat is blocking a five-year extension of a surveillance law used by the Obama administration to intercept the communications of terrorist suspects overseas.

    The move is the latest by Sen. Ron Wyden of Oregon to address concerns that the government may be reviewing the emails and phone calls of law-abiding Americans in the U.S. who are at the other end of communications being monitored abroad. Wyden addressed his concerns Monday in a letter to Senate Majority Leader Harry Reid of Nevada…”

    From Senator Wyden’s website, his published statement on his hold.

  12. P J Evans says:

    That’s about the same weight as a loaded DC-3. And I wouldn’t want one of those falling on me, either (for one thing, it’s a waste of a good airplane).

  13. P J Evans says:

    The government is now going for microdrones. My comment on them at the LA Times story was that it wasn’t the drones that are the problem – it’s the targeting.

  14. lefty665 says:


    “…movements would figure out that they could drown the National Security State in false positives by flooding the Internet with communications containing the National Security State’s computer program tripwire terms.”

    Don’t need to, they’ve done it to themselves already. Look at the “key words and search terms” starting on page 20. It would be hard to write anything that didn’t trip over several of them. It’s “sick” (there’s one), the “swine” (another) have given “bacteria” (another) like “E. Coli” (yet another) a bad name.

    Don’t go to the “airport” (yep that’s one), or take the “AMTRAK” (you guessed it), or comment on an “airplane” (yes indeedy do) or “airplane derivatives” (zzzttttt you lose, your OT talk about the drone they crashed at Pax River sounds like an “airplane derivative” to me. I’d suggest you stay out of open spaces, take the battery out of your cell phone, or better yet, give it to a homeless Teabagger. Don’t go through any intersections, or anyplace else with cameras. For god’s sake ditch the notebook!)

    Hotdamm they missed “tripwire” we’re home free as long as we’re not “home grown” “radicals” “nationalist” or worry about “Tornado” “Twister” “Tsunami” “Temblor” “Tremor” “Trojan”. Whew, we’re through the T’s, but the radical W’s are lying in wait “Worm” “Warning” “Watch” “World Health Organization”.

    Expect you’ve long since got their drift. Remember this is for “DHS” (tripped over another one) analysts. The people writing real search algorithms are likely considerably brighter. Hummm, “Red Cross” and “FEMA” made the list but NSA didn’t. Even “DHS” knows who not to f*** with.

  15. rosalind says:

    @lefty665: hmm, no “papa dick” or “baby dick”? oh wait, that’s on the special filter Darth installed on his DHS database in his home lair.

  16. Jessica says:

    I just finished an article in the current Wired issue about the Gaddafi regime’s spying capabilities – massive and all-encompassing – and the idea was exactly the same: gather everything into a searchable database. The only difference I could see between the US program and Libya’s was, for lack of a better term, the ‘in theory’. Gaddafi was doing exactly what the system was designed to do while, ‘in theory’, the US *could* but is ‘constrained’. (puh-lease) Here’s the article – it’s pretty interesting:

  17. lefty665 says:


    “Section 2.13 Key Words & Search Terms This is a current list of terms that will be used by the NOC when monitoring social media sites….” Right here in Wheeland we resemble that target.

    I couldn’t make this stuff up if I tried. Sigh. Tempting as it is, laughing at them is probably not constructive.

    If you want a real jaw dropper look at the remote access and control technology Intel has been baking into hardware for the better part of a decade. Some of it is designed by those same nice Israeli folks who brought us Stuxnet, DuQu, Flame, et al as well as the Narus gear NSA uses to analyze what they harvest off AT&T and other switches/methods.

  18. lefty665 says:


    Oops, missed it, my bad. “Pappa Dick” is so 2008. Please take a pass at updating those “Dick” key words. Best do it from someone else’s computer.

    The last 3.5 years have brought us stuff in the flesh that would have given ol’ Darth wet dream heart attacks if he’d dared dream them. Them boys was pikers, it was a failure of what Duhbya’s Daddy called “that vision thing”.

    We’re at the 40th anniversary of “Slippery Dick’s” excellent Watergate adventure. Where the hell’s Sam Ervin when we need him here in the wonderful world of the future?

  19. lefty665 says:

    @P J Evans:

    “DHS” might not, but NSA’s a very different critter. Don’t expect we’ll ever get to see their keyword list. They’ve been doing automated traffic analysis for 60 years, more if you count predecessor organizations. They’ve likely forgotten more about it than “DHS” will ever know.

    “Hi Mr. NSA guy” goes into the pot along with your credit card/bank records, where and when you showed up on cameras, phone tracking, voice, email, Facebook, etc. Better hope you haven’t liked the same pizzaria a guy who later went “bad” used to frequent. Seems likely that kind of stuff forms the “signature” part of signature strikes.

    Some of the comments here recently were to the effect NSA was working pretty hard on predictive analysis. That could enable projecting a signature so people could be targeted before they cause “trouble”.

    I believe the correct form of address is “Hi Mr. or Mz. NSA guy/not guy”

  20. harpie says:


    Now this is what everyone needs:

    Brookstone link to

    Parrot AR.Drone 2.0 App-Controlled Quadricopter;Captures HD video and stills of your flights—lets you easily share them online.[…]

  21. earlofhuntingdon says:

    @harpie: Snark approved. And let’s not forget to mention that file “sharing” opens a truck-sized gap in one’s own computer security, allowing dedicated private parties and governments access to a wider variety of data than would be true without file “sharing”.

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