NSA Conducts So Many Back Door Searches on US Persons It Would Be Impracticable to Approve Those Queries

Update, 8/3/14: Given what we’ve subsequently learned about FBI’s substantial number of uncounted back door searches, Litt’s description of further controls as not practicable probably most directly relates to FBI, not NSA.

While there wasn’t as much as I’d like, the Privacy and Civil Liberties Oversight Board hearing today focused somewhat on the issue of back door searches: which are when NSA searches on US person data on “incidentally” collected data under Section 702 of FISA.

DOJ National Security Director Deputy AAG Brad Wiegmann even suggested we should call them queries, perhaps to obscure all the obvious problems with them as searches under the Fourth Amendment.

The most telling exchange, however, came when PCLOB Board Member Patricia Wald suggested that the FISA Court conduct the same kind of oversight over these backdoor searches that it is now doing pursuant to the changes in Section 215 President Obama made in January. (CSPAN won’t let me embed this yet but here’s a link.) ODNI General Counsel Robert Litt shot that idea down aggressively, stating that is is not practicable.

Patricia Wald: The President required, or, I think he required in his January directive that went to 215 that at least temporarily, the selectors in 215 for questioning the databank of US telephone calls–metadata–had to be approved by the FISA Court. Why wouldn’t a similar requirement for 702 be appropriate in the case where US person indicators are used to search the PRISM database? What big difference do you see there?

Robert Litt: Well, I think from a theoretical perspective it’s the difference between a bulk collection and a targeted collection which is that–

Wald: But I would think that, sorry for interrupting, [cross-chatter]  I would think that message since 702 has actually got the content.

Litt: Well, and the second point that I was going to make is that I think the operational burden in the context of 702 would far greater than in the context of 215.

Wald: But that would–

Litt: If you recall, the number of actual telephone numbers as to which a  RAS–reasonable articulaable suspcion determination was made under Section 215 was very small. The number of times that we query the 702 database for information is considerably larger. I suspect that the Foreign Intelligence Surveillance Court would be extremely unhappy if they were required to approve every such query.

Wald: I suppose the ultimate question for us is whether or not the inconvenience to the agencies or even the unhappiness of the FISA Court would be the ultimate criteria.

Litt: Well I think it’s more than a question of convenience, I think it’s also a question of practicability.

NSA General Counsel Raj De, who has spent the better part of the last 9 months saying “it’s only metadata” went on to argue that somehow this “targeted” content program (which of course requires no advance review of selectors) is less intrusive than the metadata collection under Section 215.

Make up your damn mind!

To be fair, I suspect one of the issues is that after the Nidal Hasan attack (and this is just a very well educated guess), NSA rolled out a system whereby new communications between a targeted foreigner and an American automatically pulls up all previous communications involving that US person. That would count as a search, even though it would effectively feel like an automatic cross-referencing of all prior communications involving someone talking to a target, even if that is a US person.

Nevertheless, this means that NSA is conducting so many back door searches on US person data that it would be “impracticable” to actually give those searches some kind of review.

No wonder NSA refuses to give numbers on this practice to Ron Wyden.

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.

4 replies
  1. grayslady says:

    More desperation in attempting to defend the indefensible. Pure security theater, except that the sad part is Litt and De undoubtedly believe their own BS. For me, best part of day’s activities, as reported by The Guardian, is that De claims tech firms knew exactly what they were participating in when they provided access to NSA, even if they weren’t familiar with the NSA’s program term, PRISM.

  2. Luke Remick says:

    How hilariously frightening, that what they’re using to form their programs data collection procedures, in this case at least, is whether or not it would b inconvenient for them! Ah how about them saving work, amounts to them butchering the rights of each US citizen searched without a court/judge saying okay, for this reason! WTF how could that actually alluded them!?

  3. Peterr says:

    Litt sounds like an exceptionally bad lawyer. Either that, or a five year old caught with cookies in both hands, chocolate cheeks, and a pile of crumbs strewn around on the counter.

    Since when is “it would be impractical to ask permission” ever work for either a lawyer or a five year old?

    Meanwhile, old J. Edgar is cheering Litt on from the grave. “You go, kid. That’s what *I* tried to tell them, back in the day.”

  4. orionATL says:

    this week’s nsa revelation is that the u.s. national security administration now has the capacity to listen to 100% of the communications of some (unnamed) country.

    what country might that be we ask ourselves ? north korea, afghanistan, yemen, iran, russia, libya, mali, ukraine, paraguay?

    but wait.

    why go so far a field?

    what better guess than the nsa’s home base, the good ol’ u.s. of a.

    illegal you say? whenever were government lawyers with a presidential license to lie, who were diligently protecting their governmental clients’ interests, ever illegal.

    as an aside, what ever happened to tex sensenbrenner’s and unca patsy lehigh’s bill to reign in the nsa?

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