Key Loophole Allows NSA To Avoid Telling Congress About Thousands Of Abuses
from the oversight! dept
As we've noted, one of the key claims by NSA surveillance defenders was that the program had strong oversight from Congress. However, with the revelations last week about thousands of abuses, it's become quite clear that this isn't true. Late on Friday, Rep. Jim Himes, who is on the House Intelligence Committee, claimed that he was unaware of those violations, was told that there were "no abuses" and that these kinds of abuses are unacceptable:Possibility of 1000s of NSA violations unacceptable. Many intel comm members unaware of this report. In fact, we have been told no abuses.
— Jim Himes (@jahimes) August 16, 2013
How is this happening? Marc Ambinder explains the "loophole" that the NSA has used to avoid telling Congress about these abuses. It's a bit convoluted, but basically, the NSA believes that Congressional oversight only covers spying done under FISA -- the law that covers any spying done on Americans, for which a court order is needed. FISA doesn't cover spying on non-US persons (i.e., foreigners who are outside the country at the time of surveillance). And that's where some of the abuses came in, and the NSA believes that since those aren't "FISA" related, and Congress is only overseeing "FISA," they don't have to report those mistakes.
Since the focus of oversight efforts has been on FISA compliance, NSA gives Congress detailed narratives of violations of the FISA-authorized data sets, like when metadata about American phone records was stored too long, when a wrong set of records was searched by an analyst or when names or “selectors” not previously cleared by FISA were used to acquire information from the databases. In these cases, the NSA’s compliance staff sends incident reports to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence for each “significant” FISA violation, and those reports include “significant details,” the official said.Now, you can argue these are very different circumstances, but Ambinder points out that's not really true in many cases:
But privacy violations of this sort comprise just one third of those analyzed by the inspector general. Of the 2,776 violations reported by the NSA from May 2011 to May 2012, more than two-thirds were counted as E.O. 12333 incidents. And the agency doesn’t provide Congress detailed reports on E.O. 12333 violations.
In some ways, it’s a distinction without a difference: it does not matter to U.S. citizens whether their phone call was accidentally intercepted by an analyst focusing on U.S.-based activities or those involving a foreign country. But the difference is relevant as it keeps Congress uninformed and unable to perform its oversight duties because the NSA doesn’t provide the intelligence committees with a detailed narrative about the latter type of transgressions.So, basically, any "error" that involves spying on Americans doesn't "count" as an abuse, as far as the NSA tells Congress (who keep claiming they're in charge of oversight), because they "obtained" it outside the US, and the "error" is considered outside of FISA. That's a pretty massive loophole through which the NSA can hide its abuse of programs from Congress.
For example, if someone’s e-mails were inadvertently obtained by the NSA’s International Transit Switch Collection programs, it would count as 12333 error and not a FISA error, even though the data was taken from U.S. communication gateways, and NSA would not notify Congress.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: abuses, congress, foreign intelligence, house intelligence committee, jim himes, loopholes, nsa, nsa surveillance, oversight, violations
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Going to be another day of all-NSA Masnicking, eh?
[ link to this | view in chronology ]
Re: Going to be another day of all-NSA Masnicking, eh?
[ link to this | view in chronology ]
You'd think they would learn by now that being honest, truly transparent, and committed to changing the status quo is the only true way forward.
[ link to this | view in chronology ]
It't the same
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Find the tool with logging disabled and you've found why he's afraid of 90% of his admins. He'll be trying to keep the 10% loyal to him.
[ link to this | view in chronology ]
Re:
No, abuses are caught by someone reviewing the cases. Logging queries provides more data that can be used for such a review, but logging (anything) all by itself catches nothing.
[ link to this | view in chronology ]
cart before the horse
It's not the loophole's fault that it's happening, it's just the excuse they are using. They would just find another loophole or lacking that simply tell you there is a secret law authorizing it that you're not allowed to ask about.
[ link to this | view in chronology ]
Is he stupid? in every job I ever held there always was incidents of some kind or another and always where there were none if people cared to look around there was someone hiding them for one reason or another, now I cannot believe a politician is that stupid, or is this stupidity being used to disguise dishonesty?
I cannot say, what I am sure of, is that any semblance of trust I had or willful blindness I would apply is gone now.
[ link to this | view in chronology ]
Re:
Seriously, I wouldn't believe it of a copier repair company, and he takes the word of a spy organization? What a moron.
[ link to this | view in chronology ]
Truly incredible.
[ link to this | view in chronology ]
There is something in this that really disturbs me beyond the fact they are lying. What it is, is this stretching of meanings of words, requirement of oversight and what's to be done, along with 'we can't tell you what we see the law as saying', all points not just to a NSA gone crazy but to a government as well as and executive branch using the same mental tricks.
You see it in the EFF's attempt to get to the bottom of what gives the NSA the power to spy. Obama and the DOJ promptly claim National Security. That little maneuver has been used to death over and over in court. It's now coming down to that's how the country is run. "Trust us, it's too complicated to explain, and we are looking out for the public's interest".
Pesoli's little speech about Obamacare before the vote is a good example. Don't have time to read the bill but vote for it, you'll like what's in it.
My point is there is a lot going on in Washington these days that could use the exposure of sunlight.
[ link to this | view in chronology ]
Re:
I might feel a little better if they just said "yeah we screwed that up. We're working on new processes to make sure it doesn't happen again". Instead we get an explanation of why they're allowed to pull the wool over Congress' eyes, as though they think they're not doing anything wrong. The fact that they may actually believe they're not doing anything wrong is pretty scary.
[ link to this | view in chronology ]
[ link to this | view in chronology ]