FISA Court Decides FBI, NSA Surveillance Abuses Should Be Rewarded With Fewer Restrictions On Searching 702 Collections

from the hey-we've-got-terrorists-to-catch-and-whatnot dept

A heavily-redacted opinion has been released by the FISA Court. Even with the redactions, it's clear the NSA and FBI have continued to abuse their Section 702 privileges. But rather than reject the government's arguments or lay down more restrictions on the use of these collections, the court has decided to amend the rules to make some of these abuses no longer abuses, but rather the new normal. This means there are now fewer protections shielding Americans from being swept up by the NSA collections or targeted using this data by the FBI.

Elizabeth Goitein of the Brennan Center has a good rundown of the abuses and the court's response. She points out in her Twitter thread that some of this can be traced back to the reforms enacted by the USA Freedom Act, which codified some restrictions but didn't go far enough to prevent future abuses or mandate better reporting of rule breaking by these agencies.

The opinion [PDF] notes the NSA found it too difficult to comply with a Section 702 requirement that at least one end of targeted communications involve someone outside of the United States. When faced with following this requirement and possibly losing access to communications it wanted, it simply chose to ignore the requirement.

On some prior occasions when NSA had tasked apparently [redacted] it violated its current targeting procedures [redacted] apparently in order to avoid loss of foreign-intelligence information. See Preliminary Notice of Compliance Incident Regarding [redacted] Certain Upstream Acquisitions, Feb. 21, 2019. Of course, the proper course would have been to seek amendment of the procedures earlier, rather than unilaterally deciding to deviate from them. Indeed, the Court's October 3, 2019, Order required the government to provide additional information about the disposition of information that was improperly acquired as a result of that incident.  

That's the problems with the "upstream" collection. The "downstream" collection has similar problems.

The Notice filed on August 23, 2019, explains that [redacted] post-tasking checks for selectors for certain [redacted] would not result in useful information regarding the location of the targets who use those facilities. See August 23, 2019, Notice, at 2-3. In anticipation of tasking such facilities, the proposed NSA targeting procedures have been revised to require [redacted] post-tasking checks only "in those cases in which [NSA]is technically capable of' performing them.

The courts says all of this is fine. It doesn't want the NSA to lose access to foreign intelligence information by tossing out stuff it can't be sure originated outside of the United States. It also doesn't want the NSA to lose similar information on the downstream side by tossing out anything whose origin can't be determined. So the court says it's the thought that counts and allows the NSA to disregard these requirements whenever they pose problems to analysts.

The Court expects that [redacted] post-tasking checks will be employed whenever feasible. On that understanding, and in view of the increased frequency with which acquired communications will be reviewed for indications that a target is in the United States when the [redacted] checks are not feasible, this revision does not impede the Court's finding that the 2019 NSA Targeting Procedures are "reasonably designed to ... ensure" that acquisitions are "limited to targeting persons reasonably believed to be located outside the United States."

The court also addresses the NSA's information sharing with the FBI. And it comes to the conclusion that in close cases, the FBI should just get the info and determine on its own whether it's been legally acquired.

Under these provisions, NSA has some discretion in determining what information is "reliable" or "useful," and therefore must be passed to the FBI. The Court expects NSA to make such determinations on an individualized, case-by-case basis, by assessing the totality of information available about a particular target or selector. In close cases, the Court expects NSA to err on the side of providing information to the FBI, rather than withholding it, so that the FBI is better able to make informed and accurate decisions under its targeting procedures.

The FISA court notes this could result in abuse by the FBI but says that risk is worth taking since it would result in more efficient surveillance efforts.

One can conceive of circumstances in which omitting an FBI [redacted] under this provision could result in erroneous approval [redacted]. On the other hand, it seems likely that, in the vast majority of the situations in which the provision would be relied upon, the FBI would simply be avoiding duplicative effort that would not yield relevant new information.

This permission slip by the FISA Court is being handed out despite the FBI reporting recent violations of its Section 702 privileges.

In July 2019, an oversight review of [redacted] discovered 87 queries of raw FISA-acquired information in [redacted] that were not reasonably likely to retrieve foreign-intelligence information or evidence of a crime, including:

- queries of college students participating in a "Collegiate Academy"; and

- queries of individuals who had visited the FBI office (e.g., for maintenance).

The court says the FBI also abused access to run searches on a person filing a complaint and to vet potential informants.

The FBI also reported searching unminimized Section 702 collections 16,000 times -- all supposedly considered likely to "return foreign-intelligence information or evidence of a crime." The court says the FBI can really only justify seven of the 16,000 searches.

There's even more violations listed in the order, but at the end of it, all Judge James Boasberg has to say is that everyone involved did a pretty good job and just needs to try a bit harder in the future. And since trying hard is hard, he's made things easier by loosening a few restrictions. This obviously won't stop the never ending run of surveillance abuses. But it will designate fewer of them as "abuses," so things will at least look like they're improving, even if nothing has really changed.

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Filed Under: 702, fbi, fisa court, fisc, nsa, section 202