Secrecy: Leaks Prosecutions

Can You Understand These Data Collection Stories Without Understanding the Minimization Procedures?

By Robert Chesney
Thursday, June 6, 2013, 11:39 PM

Four comments on today's Washington Post story (and the Verizon story on domestic and foreign data collection):

First, today's Post story reminded me of this very interesting 2008 post from David Kris.  It is worth re-reading now. A key passage:

As far as I can determine, the government seems to have persuaded the FISA Court in January 2007 that the international gateway switches, which essentially are the junctions between the U.S. and the rest of the world’s telecommunications grids, are reasonably particular FISA “facilities,” and that al Qaeda is using them. If that is right, it means that a handful of orders gave the government access to all, or almost all, of the international telecommunications traffic entering or leaving the United States. That is very speedy and agile.

The problem, of course, is that while al Qaeda is using those switches, so is everyone else. Even under the most extreme estimates, al Qaeda cannot account for more than a tiny percentage of calls transiting the switches.

It is possible that the government and the FISA Court saw this problem, and dealt with it through minimization. What they may have decided is that while the government has authority to conduct surveillance of al Qaeda on the switches, it cannot actually have someone monitor – listen to or record – any individual call without probable cause (or something like probable cause) that at least one party to the call is a terrorist (or something like a terrorist). This minimization standard may resemble the normal probable-cause determination required by FISA for agents of a foreign power, except that it is made by the executive branch rather than by the FISA Court.

My second comment follows from David's 2008 commentary:  It is very significant that we do not yet know what minimization procedures are attached to the program described in the Post article (or for that matter to the program involved in the other NSA story this week, involving Verizon and domestic traffic).  Yes, the Post story references a problematic-sounding approach to minimization in what is described as an NSA training manual.  Hard to judge that out of context, however; I'd like to know all that the manual says, and for that matter whether the manual matches the approved minimization procedures.  In any event, the point is that it is quite possible that one or both programs would look rather different if the details of the governing minimization procedures were factored into the stories.  Of course, that would require the government to acknowledge and discuss these classified programs, which it probably feels it cannot do--though it probably should give serious thought to doing it in this case, as it may be quite instructive.

Third: This story and the Verizon story both underscore the point (which I associate with Jack's book Power & Constraint) that, though we do seem to live in a time of extraordinary government secrecy in some respects, it is simultaneously a time of extraordinary leaking.    So...will there be a leak investigation for this one?  The Post writes:

Firsthand experience with these systems, and horror at their capabilities, is what drove a career intelligence officer to provide PowerPoint slides about PRISM and supporting materials to The Washington Post in order to expose what he believes to be a gross intrusion on privacy. “They quite literally can watch your ideas form as you type,” the officer said.

Fourth, and related to the interesting question of how this story came about, there is the interesting fact that the byline here is shared between the familiar name of Barton Gellman and the unexpected name of Laura Poitras.  Laura is a documentary film-maker, and in 2012 was a MacArther Fellow based on her work on a series of films on post-9/11 issues.  Her MacArther bio is here, and here is an "op-doc" she published with the New York Times last year describing her concerns about what the NSA might be up to under the FISA Amendments Act, and (via a 9-minute video) her take on an NSA leaker/whistleblower (William Binney) involved in revealing the Stellar Wind program.  Between the appearance of Poitras on the byline in this new piece, and the questions that the Post must have grappled with regarding whether and why to reveal this classified program, there is a lot that is of interest here simply from a media studies perspective...paging On the Media!