NSA Statements On 'About' Collection Shutdown Contradict PCLOB's Findings

from the nothing-is-real-and-nothing-to-get-hung-about dept

The impact the dropping of the "about" collection will have on the NSA's upstream harvesting will either be massive or minimal, depending on who you ask.

The Privacy and Civil Liberties Oversight Board's report on the "about" collection noted a few things, one of them being the supposed impossibility of preventing inadvertent collection.

All of these types of “about” communications can provide intelligence value, helping the government learn more about terrorist networks and their plans or obtain other foreign intelligence. While “about” collection is valued by the government for its unique intelligence benefits, it is, to a large degree, an inevitable byproduct of the way the NSA conducts much of its upstream collection. As discussed earlier in this Report, because of the technical manner in which this collection is performed, the NSA cannot entirely stop acquiring “about” communications without also missing a significant portion of “to/from” communications. Nor does the agency have the capability to selectively acquire certain types of “about” communications but not others.

At least some forms of “about” collection present novel and difficult issues regarding the balance between privacy and national security. But current technological limits make any debate about the proper balance somewhat academic, because it is largely unfeasible to limit “about” collection without also eliminating a substantial portion of upstream’s “to/from” collection, which would more drastically hinder the government’s counterterrorism efforts.

According to the PCLOB's interpretation, the "about" collection -- despite its many civil liberties issues -- could not be dropped without causing a significant loss of intel. In fact, the report goes so far as to claim the "about" collection itself is an "inevitable byproduct" of upstream surveillance -- rather than the way it actually appears to be: the inadvertent collection of US persons' communications is an inevitable byproduct of the "about" collection.

The NSA's statements on the ending of this program don't seem to cohere with the PCLOB's assertions, something pointed out by Jake Laperruque on Twitter.

Two statements were released by the NSA. The first seems more aligned with the PCLOB report's assertions about tech impossibilities and intel loss.

Even though NSA does not have the ability at this time to stop collecting "about" information without losing some other important data, the Agency will stop the practice to reduce the chance that it would acquire communications of U.S. persons or others who are not in direct contact with a foreign intelligence target.

The second statement, however, hints that the intel loss will not be nearly as significant as it's being portrayed... and that the "about" part was never a necessary part of intercepting "to/from" communications.

After considerable evaluation of the program and available technology, NSA has decided that its Section 702 foreign intelligence surveillance activities will no longer include any upstream internet communications that are solely "about" a foreign intelligence target. Instead, this surveillance will now be limited to only those communications that are directly "to" or "from" a foreign intelligence target. These changes are designed to retain the upstream collection that provides the greatest value to national security while reducing the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the Agency's foreign intelligence targets.

The PCLOB's assertion that the "about" collection was an "inevitable byproduct" of upstream surveillance is nowhere to be found. The NSA itself states it can still perform upstream interception without nearly as much inadvertent collection simply by eliminating the "about" variable. If this is true, the NSA always had the capability to reduce the amount of inadvertently-collected communications. It just chose not to.

In any event, the upstream collection lives on, albeit in a slightly more constitutional form. The technical problem the NSA claimed prevented it from inadvertently collecting US persons' communications turns out to be something else: a minimal-impact search variable the agency could have eliminated years ago, bringing back some semblance of targeting to its surveillance work.

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Filed Under: 702, about, about searches, mass surveillance, nsa, pclob, section 702, surveillance