FISA Amendments Act Minimization: Preventing Serious Harm to Corporate Persons

As I was working through some other things last night, I had an opportunity to compare the minimization standards for the FISA Amendments Act (see section h) with the standards under which the actual minimization procedures allow the retention of purely domestic communications (that is, between parties that are all within the United States). These procedures are in addition to procedures that affect foreign communications (with one of the participants a non-US person outside the US).

Last night, I suggested there were 3 “normal” standards and one that doesn’t appear in the law pertaining to cybersecurity and encrypted communications. But that’s not entirely right. The last standard in the actual law reads,

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

That is, the actual law allows retention of information for up to 72 hours (presumably to process, which is moot anyway, since they’re actually keeping this data 5 years), unless the court or the Attorney General says it must be kept longer because it pertains to threat of death of serious bodily harm.

But in the minimization standards themselves, here’s how that reads.

A communication identified as a domestic communication will be promptly destroyed upon recognition unless the Director (or Acting Director) of NSA specifically determines, in writing, that:

the communication contains information pertaining to a threat of serious harm to life or property. [my emphasis]

In plain language, the law seems to be about saving human lives. But in paragraphs marked Secret, the government has redefined threat of death or “serious bodily harm to any person” as “serious harm to life or property.”

And while it’s just a guess here, I’m guessing that they switched this language, protecting property, not people, to protect corporate people.

In any case, spying on entirely domestic communications to protect against threats entirely to property, not life, sure seems like a giant loophole in a program that is supposed to be focused exclusively on foreign intelligence.

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.

8 replies
  1. Skilly says:

    I may not have the technical knowledge to answer this question and I have not seen anyone else discuss it, but is it possible that the when the telecoms and data providers “comply” with the court orders to turn over data, that the data is converted in a manner that makes it (derivative) no longer the same materials provided by the telecom and therefore the NSA and FBI can claim that they are not “keeping” the data for more than 72 hours. Thus they can claim compliance with the letter of the law? Maybe some of the wonks out there can clarify for me?

  2. greengiant says:

    Property would be needed to simplify things like espionage, cyber terrorism and financial terrorism?
    As always definitions of content, communications, and retain will be bent.

  3. papicek says:

    @Skilly: @Skilly: Good point. This is entirely possible. A phone number can be linked to the subscriber using a reverse lookup, then a new record created of the call while the original data is discarded. This is almost certainly being done and the record could then be retained (and archived indefinitely). Call it “derived data” and it’s something I’ve never heard anyone ask of Alexander or Clapper.

  4. Ken Muldrew says:

    There is kind of a nice historical irony here when you consider that Jefferson deliberately removed “property” from Locke’s “Life, liberty, and property” when setting forth the American ethos. Of course, he couldn’t have known that terrorists would come to America and change everything.

  5. thatvisionthing says:

    Bill Moyers to Tim DeChristopher, who disrupted illegal drilling leases of public lands in Utah:

    http://billmoyers.com/segment/why-tim-dechristopher-went-to-prison-for-his-protest/

    BILL MOYERS: Do you see any irony in the sentence you received, up to two years in prison, compared to what happened to BP when that oil spill killed 11 workers, injured 17 and wreaked havoc with the environment along the Gulf Coast. Yet no one from the company went to jail. They paid a big fine, but no one went to jail.

  6. earlofhuntingdon says:

    Unilaterally changing the law to protect property? Where the law itself refers only to possible crimes involving the threat of imminent death or serious bodily harm?

    I wonder which K Street lobbyist thought that was a good idea (or which one wrote it). The odds are that the more than 30,000 of them (mostly former Congresscritters) all agreed that it was an appropriate invention, a little creative penmanship, nay statesmanship, that would protect the body politick. As usual, Mr. Obama followed their lead.

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