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Eric Holder Resigns, Will Likely Go Back to Representing Banks at Covington and Burling

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As we speak, Chuck Schumer is probably yelling into a phone trying to get President Obama to nominate Wall Street’s US Attorney Preet Bharara to succeed Eric Holder as Attorney General. “Barahck,” Schumer is probably yelling, “I can get Mitch to agree to push Preet through in the Lame Duck.”

That’s because Holder has just announced his resignation, pending confirmation of his successor.

The three most interesting details in Carrie Johnson’s scoop on Holder’s resignation are that he is likely to return to Covington and Burling, where — like former Criminal Division Chief Lanny Breuer before him — he will represent banks as they craft sweetheart deals with DOJ.

Friends and former colleagues say Holder has made no decisions about his next professional perch, but they say it would be no surprise if he returned to the law firm Covington & Burling, where he spent years representing corporate clients.

Nice to know a guy can still profit off of 6 years of overlooking rampant bank crime.

Johnson also reported that Holder plans to push through racial profiling guidelines that will protect African Americans but not Muslims.

Long-awaited racial profiling guidelines for federal agents will be released soon, too. Those guidelines will make clear that sexual orientation, ethnicity and religion are not legitimate bases for law enforcement suspicion, but controversial mapping of certain communities — including Muslim Americans — would still be allowed for national security investigations, one of the sources said.

That will soil the one real bright spot of Holder’s tenure at DOJ, his fight for civil rights.

Finally, Johnson reported that Don Verrilli — the guy who seemed to, but did not quite — lose the ObamaCare fight is the leading candidate to replace Holder.

The sources say a leading candidate for that job is Solicitor General Don Verrilli, the administration’s top representative to the Supreme Court and a lawyer whose judgment and discretion are prized in both DOJ and the White House.

By “judgement and discretion,” I wonder whether Johnson’s sources are referring to Verrilli’s stubbornness in not correcting the lies he told SCOTUS (wittingly or unwittingly) about DOJ’s implementation of FISA Amendments Act in the Amnesty v. Clapper case. By claiming, falsely, that DOJ gives defendants notice that they’ve been caught using Section 702, Verrilli successfully beat back the Justices’ concerns that no one would ever have standing to challenge these laws.

For what it’s worth, I think people are vastly overestimating the time it will take to replace Holder. After all, Republicans are on the record that they believe Holder to be contemptuous of Congress. While the House GOP that is suing him don’t actually get a vote on his replacement, surely they’ll convince their proxy Ted Cruz to represent their contempt.

Thus, for the right candidate, I suspect confirmation will happen quickly, just as Caroline Krass got confirmed in a landslide when the costs of leaving Robert Eatinger — who referred CIA’s overseers to DOJ for investigation — in place as Acting CIA General Counsel became clear.

I’m just not convinced Verrilli is that guy. And while Preet did lead the investigation into Alberto Gonzales’ politicization of the US Attorneys when he worked for Schumer, surely the GOP cares more about his diligent efforts to not investigate the banks in the interim.

Wyden and Udall Accuse DOJ of Misleading SCOTUS about Upstream Even as NSA Misleads NDCA about Upstream

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As Charlie Savage reported this morning, Senators Ron Wyden and Mark Udall continue their ceaseless efforts to get NSA and DOJ to tell the truth. They (along with Martin Heinrich) wrote a letter to DOJ in November complaining about representations made in the Amnesty v. Clapper case. DOJ responded. And now Wyden and Udall have just written another response.

In addition to complaining about the government’s notice to defendants, Wyden and Udall claim DOJ improperly hid Section 702 upstream collection from SCOTUS by claiming the Amnesty plaintiffs could only be swept up in the dragnet if they communicated with a target.

These statements — if taken at face value — appear to foreclose the possibility of collection under section 702 intercepting any communications that are not to or from particular targets. In other words, the Justice Department indicated that communications that are merely “about” a target would not be collected. But recently declassified court opinions make it clear that legitimate communications about particular targets can also be intercepted under this authority. Since this fact was classified at the time, the plaintiffs did not raise it, but in our view this does not make these misleading statements acceptable.

The Justice Department’s reply also states that the “about” collection “did not bear upon the legal issues in the case.” But in fact, these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court’s analysis. In writing for the majority, Justice Alito echoed your statements by the Court by stating that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals — namely their foreign contacts.” This statement, like your statements, appears to foreclose the possibility of “about” collection.

[snip]

[W]hile the Justice Department may claim that the Amnesty plaintiffs’ arguments would have been “equally speculative” if they had referenced the “about” collection, that should be a determination for the courts, and not the Justice Department, to make.

After laying this out, they conclude by accusing the Executive of making “misleading statements to the public, Congress and the courts.”

They don’t name all the Courts, though.

They might want to start collecting a list of all the courts DOJ and NSA have lied to, though. Because even as the Senators and DOJ were having this squabble in DC, NSA was continuing to misinform courts on the other side of the country.

Consider how then Acting NSA Deputy Director Frances Fleisch described upstream collection — and the collection of entirely domestic communications that FISC deemed illegal — in a then-sealed declaration in the EFF Jewel case submitted 4 days before DOJ responded to the Senators.

Once a target has been approved, the NSA uses two means to acquire the target’s electronic communications. First, it acquires such communications directly from compelled U.S.-based providers. This has been publicly referred to as the NSA’s PRISM collection. Second, in addition to collection directly from providers, the NSA collects electronic communications with the compelled assistance of electronic communications service providers as they transit Internet “backbone” facilities within the United States.

[snip]

In an opinion issued on October 3, 2001, the FISC found the NSA’s proposed minimization procedures as applied to the NSA’s upstream collection of Internet transactions containing multiple communications, or “MCTs,” deficient. In response, the NSA modified its proposed procedures and the FISC subsequently determined that the NSA adequately remedied the deficiencies such that the procedures met the applicable statutory and constitutional requirements, and allowed the collection to continue.

That is, Fleisch doesn’t even hint that the problem on which Bates ruled — the MCTs — consisted of entirely domestic communications unrelated to those mentioning the “about” selector. She doesn’t even hint that in addition to those MCTs, upstream collection also includes over 4 times as many completely domestic communications — SCTs — as well. She doesn’t reveal that John Bates threatened NSA with sanctions over distributing illegally collected domestic person content. And all of these issues are central to the Jewel complaint, which has always focused on telecoms collecting US person content at circuits. (I believe earlier declarations to NDCA were even more incomplete or downright dishonest on this issue, though will need to show that in a later post.)

In fact, EFF complained about this omission its response to the government’s declarations, noting that upstream about collection is precisely what whistleblower Mark Klein revealed back in 2006.

Public disclosures over the past six months, however, provide substantially more information about these collection practices than the government’s passing references. In particular, the government has publicly released an opinion of the FISC confirming that “‘upstream collection’ refers to the acquisition of Internet communications as they transit the ‘internal backbone’ facilities” of telecommunications firms, such as AT&T. Mem. Op. at 26, Redacted, No. [Redacted] (FISC Sep. 25, 2012) (emphasis added) (Ex. 1).

[snip]

These descriptions of upstream Internet surveillance are functionally identical to the surveillance configuration described by the [Mark] Klein evidence: a system designed to acquire Internet communications as they flow between AT&T’s Common Backbone Internet network to the networks of other providers.

The FISA Court ruled that NSA had been breaking the law and violating the Constitution for at least 3 years leading up to the 2011 decision. And neither DOJ nor NSA have bothered telling courts ruling on the legality of the program about that fact.

It’s pretty impressive that the Executive can mislead courts about the same subject in so many places at once.

But I guess that’s just the flip side of an omnipresent spying agency, that it can also serve as an omnipresent lying agency.

Today’s NSA-Related Orwellianism: “Derived From”

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As I noted in this post, the government has submitted its response to Mohamed Osman Mohamud’s motion for discovery on how DOJ came to forget to tell him he had been discovered through the use of Section 702 spying.

The bulk of their argument basically boils down to this assertion, which they repeat in many forms throughout their response.

A remedy for untimely notice exists under FISA: the defendant will be given the opportunity to challenge evidence obtained or derived from FISA collection in a suppression hearing governed by the procedures set forth in FISA.

That is, they argue the only thing Mohamud is entitled to is an opportunity to challenge the Section 702 evidence, which they intend to prevent adversarial review of by chanting “national security.” Which is another way of saying they believe Mohamud has no real remedy at all.

But the really pathetic part of the response comes in the passage where they try to explain why they didn’t give Mohamud timely review.

The problem was not bad faith, they argue (and they’d like the judge to just ignore the other late notice they gave Mohamud in this case). No, not at all.

Rather, it derived from confusion over the meaning of “derived from.”

You see, DOJ has always known that it must notify defendants when they plan to use information “derived from” Title VII (that is, Section 702) collection.

At the outset, defendant’s assertion regarding the existence of a “secret policy” and claim that the government engaged in deliberate misconduct to conceal the use of Title VII-derived evidence are unfounded. The Department has always understood that it is required to notify any “aggrieved person” of its intent to use or disclose, in a proceeding against such person, any information obtained or derived from Title VII collection as to which that person is an aggrieved person, in accordance with 50 U.S.C. §§ 1806(e), 1881e(a).

It’s just that DOJ didn’t really consider information “derived from” Section 702 to be information “derived from” Section 702, instead considering it to be “obtained from” Title I (traditional FISA) and Title III (stored communication). Or something like that.

The Department’s determination, however, that information obtained or derived from Title I or Title III collection may, in particular cases, also be derived from prior Title VII collection is a relatively recent development (and one that occurred after trial of defendant). The Supplemental Notification filed in this case, which the government provided based on its own review, resulted from that determination and demonstrates good faith, not misconduct.

As this Court knows, pursuant to Title I of FISA, the government must notify any “aggrieved person” of its intent to “enter into evidence or otherwise use or disclose,” in a proceeding against such person, “any information obtained or derived from [FISA authorized] electronic surveillance of that aggrieved person.” 50 U.S.C. § 1806(c); see also 50 U.S.C. § 1825(d) (requiring notice to an aggrieved person of the intent to use evidence against such person obtained or derived from a physical search conducted pursuant to FISA). The FAA provides that information acquired from Title VII collection “is deemed to be” information acquired pursuant to Title I for, among other things, the purposes of the applicability of the statutory notice requirement and the suppression and discovery provisions in Section 1806 of Title I. See 50 U.S.C. § 1881e(a).

The Department has always understood that notice pursuant to Sections 1806(c), 1825(d) and 1881e(a) must be provided when the government intends to use evidence directly collected pursuant to Title I, III, or VII. Such evidence would be evidence that was “obtained from” such FISA collection.

It’s around about here that the government admits it has been using a different definition of “derived from” in the case of criminal Title III warrants “derived from” FISA information than it has been when using FISA warrants “derived from” other FISA collection.

Likewise, the Department has always recognized that notice pursuant to those provisions must be provided when the government intends to use evidence obtained through ordinary criminal process (such as a Rule 41 search warrant) that was itself based directly on information obtained pursuant to Title I, III, or VII. Such evidence would be evidence that was “derived from” such FISA collection.

Prior to recent months, however, the Department had not considered the particular question of whether and under what circumstances information obtained through electronic surveillance under Title I or physical search under Title III could also be considered to be derived from prior collection under Title VII. After conducting a review of the issue, the Department has determined that information obtained or derived from Title I or Title III FISA collection may, in particular cases, also be derived from prior Title VII collection, such that notice concerning both Title I/III and Title VII collections should be given in appropriate cases with respect to the same information.3

3 The Department has concluded that in determining whether information is “obtained or derived from” FISA-authorized surveillance, the appropriate standards and analyses are similar to those appropriate in the context of surveillance conducted pursuant to Title III (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522).

Breaking! DOJ plans to start treating legal words used in a national security context the same as they treat the same words in a criminal context.

And so you see, the problem was not a matter of bad faith or prosecutorial misconduct. Goodness no! It was just that DOJ used a special definition of “derived from” back in 2010 when it did not provide proper notice to Mohamud.

In November 2010, at the time the original notice was filed, the government knew that some of the evidence to be used in the case had been obtained or derived from Title I and Title III FISA collection. It did not consider whether that same evidence was also “derived,” as a matter of law, from prior FISA collection pursuant to Titles I, III, or VII.

Note they’re subtly changing their argument here. They’re suggesting they didn’t consider whether this information was “derived from” Section 702 in 2010, even though they’ve just explained that even if they had, they would have been using their special definition of “derived from” that would have led them to conclude that information “derived from” Section 702 is not really information “derived from” Section 702.

There’s a reason they’re doing that, I think. DOJ needs to pretend that when it was arguing that the Amnesty v. Clapper plaintiffs shouldn’t get standing to challenge Section 702, because only defendants being prosecuted based on evidence “derived from” 702 should — and more importantly would — get to challenge Section 702, it wasn’t using this sneaky definition of “derived from.”

4 Defendant’s claim that the Department’s statements to the U.S. Supreme Court in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), were inconsistent with existing Department policy is baseless. The Department informed the U.S. Supreme Court in that case, that “[i]f the government intends to use or disclose any information obtained or derived from its acquisition of a person’s communications under [Title VII] in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance under [Title VII].” US Gov’t Br. at 8. This is an accurate statement of both the law and the government’s previous and current understanding that FISA imposes an obligation on the government to provide notice of its intent to use or disclose information that was derived from Title VII collection as well as information that was obtained from Title VII collection. The issue before the Court in Clapper did not involve the precise circumstances in which information is properly considered to be derived from Title VII collection, and as such that case has no bearing here.

Using a specious definition of “derived from” with an alleged terrorist is one thing. Using the very same specious definition of “derived from” with SCOTUS is a very different thing. And DOJ would like you to think they’re not doing just that.

It almost makes you wish this very challenge gets appealed up to SCOTUS, to see what the Justices think about DOJ’s special definition of “derived from.”

DOD Complains about “Speculative” Risk of Bulk Collection

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Maybe I have a sick sense of humor.

But I laughed at the irony of this NYT story about how Edward Snowden used a web-crawler to scrape data from the NSA’s servers.

In paragraphs 28 and 29 (of 29), Defense Intelligence Agency head Michael Flynn admits what he has avoided admitting in public hearings: he has no fucking clue what Snowden took.

The head of the Defense Intelligence Agency, Lt. Gen. Michael T. Flynn, told lawmakers last week that Mr. Snowden’s disclosures could tip off adversaries to American military tactics and operations, and force the Pentagon to spend vast sums to safeguard against that. But he admitted a great deal of uncertainty about what Mr. Snowden possessed.

“Everything that he touched, we assume that he took,” said General Flynn, including details of how the military tracks terrorists, of enemies’ vulnerabilities and of American defenses against improvised explosive devices. He added, “We assume the worst case.”

DOD doesn’t actually know what Snowden took. They know he had access to a bunch of files on military operations.

But that leaves open the question of how Mr. Snowden chose the search terms to obtain his trove of documents, and why, according to James R. Clapper Jr., the director of national intelligence, they yielded a disproportionately large number of documents detailing American military movements, preparations and abilities around the world.

But DOD doesn’t know whether he just touched them, or took them with him. It doesn’t know whether he deleted any he took before turning them over to journalists.

For his part, Snowden says DOD’s claims he deliberately took military information are unfounded.

In his statement, Mr. Snowden denied any deliberate effort to gain access to any military information. “They rely on a baseless premise, which is that I was after military information,” Mr. Snowden said.

Snowden suggests any military information he got, he got incidentally. DOD will just have to trust him.

Nevertheless, DOD will assume the worst because that’s the only way to protect DOD equities — and indeed, the lives of our military service members (that is, if Flynn’s claims are true; given his track record I don’t necessarily believe they are).

The necessity of protecting people and secret plans because of a potential risk is actually not funny at all. Indeed, it points to the problem inherent with bulk collection conducted in secret: Those potentially targeted by it have to assume the worst to protect themselves.

Mind you, if Sam Alito were a fair and balanced kind of guy, he’d tell DOD to suck it up. The risk of this bulk collection inflicting harm on military operations is speculative.

Respondents’ claim of future injury is too speculative to establish the well-established requirement that certain injury must be “certainly impending.”

But I think Alito is wrong. I definitely don’t fault DOD for adjusting to potential risks given the lack of certainty over which of their most sensitive secrets bulk collection has compromised.

If it is a problem that Snowden touched or maybe even incidentally collected data that could cause DOD great harm — if it is understandable that DOD would assume and prepare for the worst — then NSA needs to shut down its own indiscriminate scraping of data from all over the world. Because it is imposing the same kinds of risk and costs and worries to private individuals all over the world.

Update: Eli Lake got sources who received DIA’s briefing on their Snowden report to distinguish between what DIA knows and what they’re just assuming.

FISC Already Invented that Database-and-Mining Precedent in Secret

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Almost 18 months ago, I suggested that the Amnesty v. Clapper suit challenging the government’s Section 702 collection might invent what I called a “database-and-mining” precedent.

Over at Lawfare, Steve Vladeck noted that this case would likely decide whether and what the “foreign intelligence surveillance” exception to the Fourth Amendment, akin to “special needs” exceptions like border searches and drug testing.

Third, if the Court affirms (or denies certiorari), this case could very well finally settle the question whether the Fourth Amendment’s Warrant Clause includes a “foreign intelligence surveillance exception,” as the FISA Court of Review held in the In re Directives decision in 2008. That’s because on the merits, 50 U.S.C. § 1881a(b)(5) mandates that the authorized surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” Thus, although it is hard to see how surveillance under § 1881a could violate the Fourth Amendment, explication of the (as yet unclear) Fourth Amendment principles that govern in such cases would necessarily circumscribe the government’s authority under this provision going forward (especially if In re Directives is not followed…).

I would go further and say that this case will determine whether there is what I’ll call a database-and-mining exception allowing the government to collect domestic data to which no reasonable suspicion attaches, store it, data mine it, and based on the results of that data mining use the data itself to establish cause for further surveillance. Thus, it will have an impact not just for this warrantless wiretapping application, but also for things like Secret PATRIOT, in which the government is collecting US person geolocation data in an effort to be able to pinpoint the locations of alleged terrorists, not to mention the more general databases collecting things like who buys hydrogen peroxide.

Unsurprisingly, the FISA Court already invented that precedent. In secret.

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

[snip]

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

[snip]

The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

Here’s the thing though: it’s not just that the government has done all this in a court with no antagonist. It’s that the government has gone to great lengths to make sure regular courts wouldn’t review these decisions, doing things like:

Effectively, the government has been refusing to let issues that affect a great number of Americans be reviewed in courts with real judicial process.

And then calling the result “law” and “legal” in spite of the fact that almost no Americans know about it.

The Only Independent Reviewer of Targeting and Minimization Refuses to Review It

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On May 4, Senate Intelligence Committee members Ron Wyden and Mark Udall asked the Intelligence Community Inspector General to determine whether it was feasible to determine how many US persons have been spied on under the FISA Amendments Act.

The Temporally Perfect Fuck You

On May 22, the Committee marked up the renewal of the Act. During consideration of the bill, the Committee rejected Wyden and Udall’s efforts to require the IGs quantify such numbers based on their pending request to the IGs.

During the Committee’s consideration of this legislation, several Senators expressed a desire to quantify the extent of incidental collection under Section 702. I share this desire. However, the Committee has been repeatedly advised by the ODNI that due to the nature of the collection and the limits of the technology involved, it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under Section 702 authority. Senators Ron Wyden and Mark Udall have requested a review by the Inspector General of the NSA and the Inspector General of the Intelligence Community to determine whether it is feasible to estimate this number. The Inspectors General are conducting that review now, thus making an amendment on this subject unnecessary. SSCI report on the bill reminds that the IC IGs are authorized–but not required too–conduct reviews of Section 702.

Note, elsewhere the bill report includes these authorized but not mandatory reviews as part of the “robust oversight” of this spying program.

In addition, the Inspectors General of the Department of Justice and certain elements of the Intelligence Community are authorized to review the implementation of Section 702 and must provide copies of any such reviews to the Attorney General, DNI, and congressional committees of jurisdiction.

Yet in rejecting the motion to actually mandate a review, Dianne Feinstein’s report emphasizes that this authority is optional.

Also while marking up the bill, Wyden and Udall attempted to direct the Committee’s Technical Advisory Group to review what was really going on with the FAA. That motion was ruled out of order (Kent Conrad joined Wyden and Udall on this one vote–otherwise the committee voted against all their efforts for greater oversight).

We also proposed directing the committee’s Technical Advisory Group to study FISA Amendments Act collection and provide recommendations for improvements. We were disappointed that our motion to request that the Technical Advisory Group study this issue was ruled by our colleagues to be out of order.

As a result, the bill was voted out of committee on May 22 without any requirement that the intelligence community report on how many US persons it is spying on with FAA.

On June 15, the IC IGs finally got back to Wyden and Udall. (h/t Wired) Note the dates cited in the response.

On 21 May 2012, I informed you that the NSA Inspector General, George Ellard, would be taking the lead on the requested feasibility assessment, as his office could provide an expedited response to this important inquiry.

The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

As I stated in my confirmation hearing and as we have specifically discussed, I firmly believe that oversight of intelligence collection is a proper function of an Inspector General. I will continue to work with you and the Committee to identify ways that we can enhance our ability to conduct effective oversight. [my emphasis]

So IC IG Charles McCullough waited 17 days to even tell Wyden what he was going to do with the request, at which point–the eve of the bill markup–he told Wyden that Ellard would prospectively conduct the inquiry. So when the Committee decided not to mandate an IG review based on the “pending” review, it had not started yet. Read more →

FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

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Steven Aftergood suggests there’s disagreement among Senate Intelligence Committee members about whether or not the FISA Amendments Act allows the government to get US person content without a warrant.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

I don’t think there is a conflict. Rather, I think DiFi simply responded to Wyden and Udall’s assertions with the same spin the government has used for some time. That’s because DiFi is talking about “targeting” and Wyden and Udall are talking about “searching” US person communications.

DiFi quotes much of the language from Section 702 earlier in her statement on FAA, repeating, repeating the word “target” three times.

In enacting this amendment to FISA, Congress ensured there would be important protections and oversight measures to safeguard the privacy and civil liberties of U.S. persons, including specific prohibitions against using Section 702 authority to: “intentionally target any person known at the time of acquisition to be located in the United States;” “intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;” “intentionally target a United States person reasonably believed to be located outside the United States;” or “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” As an additional measure the law also requires that an acquisition under Section 702 “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” [my emphasis]

Her specific retort to the problem Wyden and Udall differentiates clearly between “querying information collected under Section 702 to find communications of a particular United States person” and “conduct[ing] queries to analyze data already in its possession” and “targeting.”

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. Read more →