Documents Show NSA's Inability To Prevent Collection Of US Person's Data

[Mike]

The ACLU has freed up more NSA documents -- again as the result of a FOIA lawsuit. Some of what's been obtained provides a few more details on the NSA's reliance on Executive Order 12333 to perform its data and communications harvesting. This Executive Order is, and always has been, the go-to authority for the NSA. This allows it to bypass nearly every form of oversight. There's no FISA court involvement or input from Congressional oversight committees. The NSA relies almost exclusively on the good graces of the Executive Branch -- something that has worked out in its favor for the past two presidencies.

The NSA's Office of General Counsel issued a memo discussing the agency's SIGINT (signals intelligence) work in 2007 as a response to questions from the executive branch. As is par for the course, the memo expresses its concerns for the rights of "US persons," as well as the agency's strict compliance with the Fourth Amendment. All well and good as far as that goes, which isn't very far.

[W]e conclude that compliance with NSA's Attorney General-approved minimization procedures, which are required by Executive Order 12333 and are rooted in Fourth Amendment privacy protections, constrains NSA from granting to employees of other intelligence agencies widespread access to NSA content databases.

Which is true, more or less. Agencies like the UK's GCHQ are given broad access to raw, unminimized data and communications collected by the NSA, all without a warrant. The built-in argument is that the NSA doesn't release unminimized USperson data or communications to its Five Eyes partners. But this distinction makes very little difference in practice.

As a practical matter, metadata from electronic communications such as email cannot be similarly shared at the moment under the same theory, because it is not possible to determine what communications are to or from U.S, persons nearly as readily as is the case with telephony, and often is not possible at all.

As a "practical matter," nearly nothing the NSA collects should be shared, considering the untargeted manner in which it's collected. The NSA can't guarantee anything about the composition of its bulk collections, but that doesn't stop it from disseminating unminimized data/communications to its foreign "customers." In fact, the document clearly states that the agency feels there are zero protections inherent in "meta data," which means the sharing of identifying information (like phone numbers) with foreign intelligence agencies is perfecty acceptable.

A more recent memo -- issued in 2013 -- notes the further expansion of its powers under EO 12333. The document describes the 2008's modification of the 1981 Order, which consolidated signals intelligence programs under the Director of the National Security Agency. This also brought the Director of the CIA onboard as the head of Human Intelligence. The FBI was also brought in under the expansion of this directive, which added a new layer of middle management -- "functional managers" -- to the mix. These positions are in place to "weigh" the effectiveness of the interconnected agencies' programs against the "National Intelligence Priorities Framework," something that has rarely worked out in favor of privacy or civil liberties.

Originally Published: Thu, 06 Nov 2014 22:44:47 GMT
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