Any Bets FBI Was Already Searching US Person Data?

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In the department of news that got reported here two months ago, the WaPo is reporting on FISC’s approval to let the government search through incidentally collected information. Its news hook is that the 2011 move reversed an earlier 2008 ban that the government had asked for.

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

It may well be that the NSA was prohibited from searching on incidentally collected information, but not all parts of the government were. In his October 3, 2011 FISC opinion, John Bates pointed to some other minimization procedures allowing such searches to justify his approval for NSA to do so.

This relaxation of the querying rules does not alter the Court’s prior conclusion that NSA minimization procedures meet the statutory definition of minimization procedures. [2 lines redacted] contain an analogous provision allowing queries of unminimized FISA-acquired information using identifiers — including United States-person identifiers — when such queries are designed to yield foreign intelligence information. See [redacted] In granting [redacted] applications for electronic surveillance or physical search since 2008, including applications targeting United States persons and persons in the United States, the Court has found that the [redacted] meet the definition of minimization procedures at 50 U.S.C. §§ 1801 (h) and 1821(4). It follows that the substantially similar querying provision found at Section 3(b)(5) of the amended NSA minimization procedures should not be problematic in a collection that is focused on non-United States persons located outside the United States and that, in the aggregate, is less likely to result in the acquisition of nonpublic information regarding non-consenting United States persons.

We already had reason to believe other agencies do this, because when the Senate Intelligence Committee discussed it, they described the intelligence community generally wanting such searches.

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. [my emphasis]

Bates’ mention of targeting US persons strongly suggests FBI was the agency in question (though the CIA may as well). (If this practice weren’t already permitted, I would bet it got approved in the aftermath of the Nidal Hasan attack, which might explain why so many more Americans who had communicated with Anwar al-Awlaki or Samir Khan were caught in stings after that point.)

So did Ronald Litt and Alex Joel tell Ellen Nakashima this to hide a much more intrusive practice at FBI (which they also oversee)?

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

8 replies
  1. What Constitution? says:

    Whew, it sure is exhausting trying to keep up with all these NSA revelations, isn’t it? If only the Obama administration could find some way to distract attention… something that could be couched in moral terms… something that involved flexing military muscle and had undertones of unrequited Terra… But how could we find such an issue? Why am I talking to you? [With apologies to Harvey Corman in Blazing Saddles; nah, with apologies to everyone].

    Strap in and watch the talking points for the next two days — look carefully for actual proof that Assad and his senior ministers actually directed the use of CW on August 21. Bet none gets offered. Try substituting “International Convention Against Torture” each time the “international proscription against chemical weapons” is mentioned and consider the hypocrisy behind that. Re-read Article II of the United States Constitution and find the implicit authorization there for the President, acting alone, to invade a sovereign nation to advance “America’s interests” or, for that matter,to unilaterally enforce “international morality” without regard for the international community. And maybe ask whether a cruise missile can find, isolate and “disarm” CW munitions without risk of a CW release — or whether we sanely can presume that nobody, nowhere will lift a finger to “react” to such a unilateral strike.

    I’m really looking forward to reading the next installment from The Guardian and Glenn Greenwald, notwithstanding. The use of CW in Syria is truly heinous and disquieting, but it isn’t a shiny enough object to deflect attention from the need to clean up the massive and clandestine US spying infrastructure unless — as is being tried — Syrian CW can be turned into a massive international confrontation.

  2. peasantparty says:

    I agree 100%.

    I think the reason it was expanded is because they were already doing it, and tried to make it appear legal in some sort of way. I do not know how many cases are being tried in courts based on this surveillance; however my suspicions are they are in great numbers.

    Remember a few years back when the US Chamber of Commerce on behalf of Bank of America went after Glenn Grenwald and Brad Friedman? That US entity the COC had access to surveillance against their imaginary threats and they USED IT! The same contractor they used is still being used under a different business name.

    We have since then learned that our local, county, and state police agencies are using it. Of course, they claim it is for the purpose of drug law enforcement, etc. I happen to think the reason the President expanded the power AFTER the fact was due to the court cases against them.

    Now, I am suspicious that not only the Chamber of Commerce has free access, along with the banks and wall street kings; which we learned from the Occupy Wall Street demostrations, but also other business entities. The first of my suspicion would be the large Insurance industries. The next would be use by Corporations to more fully spy on their employees. I hope my suspicions are wrong, but I won’t say it unless I have a fairly strong reason for it.

  3. peasantparty says:

    @peasantparty: For those of you that do not know who Brad Friedman is and why he would be targeted I can say this:

    Brad has spent years blogging and trying to help Americans understand the gerrymandering, vote rigging, and vote theft of America’s elections.

    There is more, but that is plenty if you can think beyond the tip of your nose. His site is here: http://bradblog.com/

  4. orionATL says:

    @fatster:

    thanks again, fatster.

    i knew from greenwald’s column that this something like this was coming out and i started looking for it at 6 pm est (8 bst) today, but could find no reference – don’t speak no portugesa.

    i am very happy to have learned the substance of the report this evening. i had resigned myself to waiting for one more news cycle.

  5. fatster says:

    @orionATL:

    ” i had resigned myself to waiting for one more news cycle.” Anticipating the next news cycle can almost drive one to drink, huh, orionATL? *hic*

    And you’re certainly most welcome.

  6. Joanne says:

    @peasantparty:
    I am surprised that no one has yet made the jump from realizing NSA control of our communications networks to considering the implications for electronic voting. I for one am looking forward to a huge “I told you so” to all those condescending reporters, lawyers and election officials who claim total confidence in our non-transparent, non-verifiable, corporate controlled computerized voting systems.

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