NYT Mischaracterizes PCLOB Report While Transcribing NSA Pushback to WaPo

The NYT has a story transcribing Administration efforts to “play down new disclosures” from the WaPo showing that the bulk of people whose communications were collected in a sample provided by Edward Snowden were not targets. The key claim NYT transcribes is that NSA “filters out” US person communications.

Administration officials said the agency routinely filters out the communications of Americans and information that is clearly of no intelligence value.

In addition, the NYT claims that PCLOB had no problems with the way the government minimized all this data.

Just days before the Post article, an independent federal privacy board had largely endorsed the N.S.A.’s execution of the program. The Privacy and Civil Liberties Oversight Board concluded last week that the “minimizing” of that data was largely successful, at least under the current law, which Congress passed six years ago.

Um, no.

I hope to explain this at more length, but the WaPo suggests that the government did not comply with targeting and minimization requirements in two ways: first, because the standards for foreignness were not as stringent as witnesses have claimed for a year (something which NYT’s sources apparently don’t even try to rebut). But also, WaPo showed the NSA was not destroying communications that — at least from their own and even some of the analysts’ own descriptions of it — had no foreign intelligence value. Here are some analysts judging the data collected irrelevant.

“None of the hits that were received were relevant,” two Navy cryptologic technicians write in one of many summaries of nonproductive surveillance. “No additional information,” writes a civilian analyst.

It’s this second detail NYT’s sources attempt to rebut.

But NYT’s claim that PCLOB concluded minimization “was largely successful” ignores a number of concerns they raised about it, a number of which pertain to back door searches and upstream collection.

In addition to those concerns (which about four of PCLOB’s recommendations address), PCLOB raised this issue:

Therefore, although a communication must be “destroyed upon recognition” when an NSA analyst recognizes that it involves a U.S. person and determines that it clearly is not relevant to foreign intelligence or evidence of a crime,531 in reality this rarely happens. Nor does such purging occur at the FBI or CIA: although their minimization procedures contain age-off requirements, those procedures do not require the purging of communications upon recognition that they involve U.S. persons but contain no foreign intelligence information.

A communication must be destroyed upon recognition if it’s a US person communication with no intelligence value — PCLOB restates the standard that NYT’s sources claim is actually used. But after laying out that standard, PCLOB immediately says meeting that requirement “rarely happens.”

NYT’s sources say it routinely happens. PCLOB says it rarely happens at NSA, and not at all at CIA and FBI.

PCLOB, incidentally, recommends addressing this issue by having FISC review what tasking standards are actually used and then reviewing a subset of the data returned — precisely what the WaPo just did, though we have no way of knowing if WaPo had a representative sample.

But the story here should have been, “Administration’s rebuttal has already been refuted by PCLOB’s independent review.”

PCLOB and WaPo disagree about the tasking — PCLOB sides with past Administration witnesses on the assiduousness of NSA’s targeting.

But PCLOB entirely backs WaPo on how many worthless communications NSA is keeping and documenting.

2 replies
  1. bevin says:

    All communications, particularly those involving US persons, have intelligence value.

    Of course, in the fullness of time, when the persons involved are deceased and their files have been closed and put in storage, the worth of that intelligence may begin to degrade, eventually becoming, like the persons themselves, dust.

  2. Kyle H says:

    What I want to know is, why hasn’t anyone recognized that “bulk collection” is “capturing absolutely everything on the off-chance that it could possibly contain a communication about someone else that can later be queried for up to five years”? (This even assumes that age-off requirements are being met, which we don’t have any guarantee of. Frankly, at this point, I think it’s likely that NSA deleted information it was ordered to keep because it met the requirement for age-off and they could blame “the system” which was never built for the need to comply with judicial mandate — because NSA felt that it would never ever come under civilian court oversight, and it could predict the judiciary response to everything.)

    In other words, even the “independent review board” PCLOB has drunk the NSA kool-aid, and accepted the idea that Congress has the power to insist that classified laws have the power to exceed the guarantees of the Constitution. I don’t particularly care if it is something that the Executive says “is a matter of national security”, the fact is that adherence to the Constitution is the only way we have security that our nation hasn’t become a tyranny. At this point, the only way the tyranny that US has become can claim “national security” is to say “we must lie to the people who think they’re still free, and find any possible excuse to imprison those who see through the lies, by abrogating every Constitutional guarantee that exists for absolutely everyone who they’ve ever interacted with, to detect crimes that we could not possibly have had any knowledge of if we actually adhered to the limits that the contract we signed with the American people”.

    Which is precisely what’s happening. And the press is allowing the government to dictate the issues, rather than asking the much more deep-seated questions. “How is this not?” Unfortunately, this is something that only a court can compel answers to, and we’ve seen that NSA is willing to even lie under oath. Everything else is just a whitewash.

    In other words: NSA and CIA and DHS and FBI (and all other recipients of signals intelligence) have decided that their interests are more important than fulfilling the contract with the herds of sheep and cattle they shear and milk and imprison and slaughter to derive their power.

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