USA Freedumb Act and RuppRoge Both Adopt Intelligence Community Definition of “Bulk Collection”

Update: An updated version of the Managers Amendment does define the term:

(2) SPECIFIC SELECTION TERM.—The term  ‘specific selection term’ means a term used to uniquely describe a person, entity, or account.

This is far better than nothing. Though I have concerns about “entity” and I suspect there will be some pushback here, since not even phone numbers “uniquely describe a person,” much less IPs. (Update: see my post on my concerns about the definition.)

As I noted in this post, USA Freedumb Act (what I’ve renamed the compromised USA Freedom Act) purports to limit bulk collection by tying all collection to specific selection terms. It does this for Section 215.

No order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term that meets the requirements of subsection (b)(2).

It does it for Pen Register/Trap and Trace.

(3) a specific selection term to be used as the basis for selecting the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied;

And it does for all four NSL types, as here with call records under ECPA.

COUNTERINTELLIGENCE ACCESS TO TELEPHONE TOLL AND TRANSACTIONAL RECORDS.—Section 2709(b) of title 18, United States Code, is amended in the matter preceding paragraph (1) by striking ‘‘may’’ and inserting ‘‘may, using a specific selection term as the basis for a request’’.

In fact, that’s the same mechanism RuppRoge (the House Intelligence Committee’s bill) uses to prevent bulk collection — though it limits bulk collection for fewer categories of things.

It does so for electronic communications records.

Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) records of any electronic communications without the use of specific identifiers or selection terms.

And it does so for sensitive business records.

Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, education records, or medical records containing information that would identify a person without the use of specific identifiers or selection terms.

And this limitation, both bills proclaim, will prevent bulk collection.

Neither bill defines what they mean by selection term or specific identifier.

Before I consider whether these bills will, in fact, prevent what you and I might consider bulk collection, note what has happened: both of these bills — the crappy Intelligence Committee wish list bill and the allegedly less crappy “reform” bill — have adopted the definition of “bulk collection” used by the notoriously Orwellian Intelligence Community.

This is perhaps best explained in Obama’s President’s Policy Directive on surveillance.

References to signals intelligence collected in “bulk” mean 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.).

Now, we’re at a huge disadvantage to be able to assess whether this definition of bulk collection bears any resemblance to what ordinary humans might understand bulk collection to mean, because the government is being very disingenuous about what they claim it to mean.

The government often publicly claims selectors are things “like telephone numbers or email addresses,” as they did repeatedly at the last PCLOB hearing.

I can assure you, however, that when they refer to “selectors like email or telephone,” they’re downplaying their use of things like other IDs (phone handset and SIM card IDs, credit card numbers, Internet IDs or even passwords, IP address, and site cookies). And nothing in the definition says selection terms have to have anything to do with actual people (as the evidence they use malware code as a selector would indicate). Plus, I could envision many things — such as “Area Code 202” or “Western Union transfers over $100”  — that would seem to qualify as selection terms.

But we can measure whether limits to selectors or search terms prohibits bulk collection via another means — by looking at the program about which we’ve gotten most details on selector searches: upstream 702 collection.

While we can’t assess how many “innocent” Americans get sucked up in this purportedly non-bulk collection (and I doubt NSA can either!), we do have an idea how many American communications get sucked up who shouldn’t according to the one-end foreign rule on the collection.

Up to 56,000 American communications a year, according to FISC Judge John Bates’ estimate (because the NSA refused to provide him the real numbers).

56,000 American communications that should not, under the law, have been targeted, sucked up using “identifiers” and “selection terms.”

And the government doesn’t consider that bulk collection at all.

That, my friends, is the standard two different Committees in Congress have adapted as well, doing the intelligence community’s bidding, claiming they’ve solved the bulk collection problem.

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.

1 reply
  1. John Dough says:

    While we can’t assess how many “innocent” Americans get sucked up in this purportedly non-bulk collection (and I doubt NSA can either!), we do have an idea how many American communications get sucked up who shouldn’t according to the one-end foreign rule on the collection.

    They can figure it out after torturing everyone. You know, bust in your house, look around, look in your bags etc. but if they find nothing, “Have a great day sir/ma’m” and they’re on their way. Just like the Constitution intended, and the President promised. -_- … I think there is a major power struggle in higher chains of command where the President seems to find the All-Seeing-Eye/NSA as the only tool at his disposal for power? It’s certainly a shit show of the struggle between the branches, and I can tell you culture and money is at the heart of it, like any bullshit innocents have to suffer. I’m ashamed to know that most of these “laws” I took for … well laws, are really just seen as old texts that money doesn’t support anymore. It looks like the morality in governance has come down to “money or gtfo”, they are whores and they don’t know it. Because money is indestructable … -_o It’s really terrifying to those who can fathom it. Be rich or be a slave. Or be unimportant enough that they won’t care, but that also means you’ll never be rich nor … well important. No mystery in life for these folks, fuck me we’re never going to discover the cosmos, we’ll build the Matrix before we build Star Trek lol

Comments are closed.