In Cut and Paste Tumblr Post, James Clapper Describes Who We Can Spy on without Discriminants

As part of his Presidential Policy Directive on Signals Intelligence, Obama said this about bulk collection:

In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering: (1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) threats to the United States and its interests from terrorism; (3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction; (4) cybersecurity threats; (5) threats to U.S. or allied Armed Forces or other U.S or allied personnel; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section. In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S . business sectors commercially; or achieving any purpose other than those identified in this section.

The Assistant to the President and National Security Advisor (APNSA), in consultation with the Director of National Intelligence (DNI), shall coordinate, on at least an annual basis, a review of the permissible uses of signals intelligence collected in bulk through the National Security Council Principals and Deputies Committee system identified in PPD-1 or any successor document. At the end of this review, I will be presented with recommended additions to or removals from the list of the permissible uses of signals intelligence collected in bulk.

The DNI shall maintain a list of the permissible uses of signals intelligence collected in bulk. This list shall be updated as necessary and made publicly available to the maximum extent feasible, consistent with the national security.

To fulfill that bolded “shall” language, James Clapper just released this on his IContheRecord Tumblr page:

Presidential Policy Directive/PPD-28 – Signals Intelligence Activities establishes a process for determining the permissible uses of nonpublicly available signals intelligence that the United States collects in bulk. It also directs the Director of National Intelligence to “maintain a list of permissible uses of signals intelligence collected in bulk” and make the list “publicly available to the maximum extent feasible, consistent with the national security.”

Consistent with that directive, I am hereby releasing the current list of permissible uses of nonpublicly available signals intelligence that the United States collects in bulk.

Signals intelligence collected in “bulk” is defined as “the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).” As of Jan. 17, 2014, nonpublicly available signals intelligence collected by the United States in bulk may be used by the United States “only for the purposes of detecting and countering:

  1. Espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;
  2. Threats to the United States and its interests from terrorism;
  3. Threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;
  4. Cybersecurity threats;
  5. Threats to U.S. or allied Armed Forces or other U.S. or allied personnel; and
  6. Transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named above.”

Further, as prescribed in PPD-28, “in no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially;” or achieving any purpose other than those identified above.

Effectively, Clapper fulfilled an obligation mandated by the PPD by simply cutting and pasting the list of 6 permissible uses of bulk collection in the PPD.

Given that this list is expected to be assessed annually, does that mean the PPD itself should be considered valid for no more than a year?

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.