The 14% Domestic Phone Content Collection under the Illegal Wiretap Program

Screen shot 2013-06-29 at 7.04.51 AMThere’s something funny about the claims the NSC Draft IG Report makes.

On page 8, the report notes:

Domestic Collection. The wording of the first authorization could have been interpreted to allow domestic content collection where both communicants were located in the U.S. or were U.S. persons. General Hayden recalled that when the Counsel to the Vice President pointed this out, General Hayden told him that NSA would not collect domestic communications because 1) NSA was a foreign intelligence agency, 2) NSA infrastructure did not support domestic collection, and 3) his personal standard was so high that there would be no problem getting a FISC order for the domestic collection.

Starting in February 21, 2006, DOJ pushed to get a FISC order for PSP collection, in spite of NSA’s numerous reservations. As an interim solution, they changed the definition of “facility” from that of a specific number of email address “to encompass the gateway or cable head that foreign targets use for communications. Minimization and probable cause standards would then be applied.” After months of trying to finesse this, FISC signed two orders to accomplish this:

The Foreign Content Order

The Domestic Content Order

Remember, domestic content, to the NSA, is content in which both participants are in the US (though at this point NSA may have been distinguishing between citizens and non-citizens). And when they moved to a FISC order, they had a specific order for domestic content. And, as the chart on page 16 shows, 14% of the telephony content was domestic (it was only 2% for Internet, though its number for that collection, 19,000, sure looks awfully round).

Now, apparently, by 2007 when they went to a FISC order, there wasn’t that much domestic collection left.

The Domestic Content Order did not create a similar loss in collection [as the 73% loss on the Foreign Content side] because so few numbers were tasked at that time. It did, however, slow operations because of the documentation required, and it took considerably longer to task under the order than under the PSP. Over time, the scope of the Domestic Content Order gradually decreased to a single selector tasked for collection in January 2009. In January 2009, at NSA’s request, assumed responsibility for the Domestic Content Order and became the declarant before the FISC.

This says they still had these gateway facilities in place 17 months after PAA passed (and NSA likely dumped it off onto FBI at that point to clean up in anticipation of Obama taking over).

The original authorization might seem to authorize domestic collection. And when they shifted to FISC rather than Presidential authorization, it continued to include domestic collection, though not so much, apparently, as when the program started.

 

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16 Responses to The 14% Domestic Phone Content Collection under the Illegal Wiretap Program

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Emptywheel Twitterverse
bmaz From four days ago. Wolfrum ahead of his time. https://t.co/ZogqV9wyDr
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bmaz RT @arj: A fine long-form article about Randy Barnett and the libertarian jurisprudence movement. Worth your time to read. http://t.co/Y6VP
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bmaz The Rehabilitationists http://t.co/ApSLfpKKEg Good piece by @brianbeutler
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bmaz RT @JimmySky: General Motors should push back against Obama's presidential overreach and christen their high-end, full-size SUV the GMC McK…
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bmaz RT @dmataconis: The busboy who cradled a dying RFK has finally stepped out of the past http://t.co/OJTSt7uIHT
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bmaz @dmataconis Pretty touching story
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bmaz Petraeus prosecutor: Clinton has committed no crime http://t.co/sXTsrPP2y7 And why those who keep demagoguing E-Ghazi are dishonest.
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JimWhiteGNV RT @wessmith123: Dear #DickCheney, We NEVER Want To Hear From You Again! Especially On The #IranDeal! #ISIS http://t.co/tQ1gu9FhfJ http:/…
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bmaz What, @ESPN making more false reports on the @NFL?? Oh, wait, @mortreport is involved, that explains it. https://t.co/NTCkUAPp6b
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emptywheel @shenebraskan Well, I root against him. I have the utmost respect for him. But you gotta root against someone and he's perfect! @024601
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emptywheel @shenebraskan Nah. But he knows how to make money & I wish more football players went on to maximize what they get for crushing their heads
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