The November NSA cache declassified by Director of National Intelligence James R. Clapper last week includes two United States Signals Intelligence Directive (USSID) documents. The more important of the pair, USSID SP0018, dated January 25, 2011, is a 52-page tract comprising nine sections and eleven annexes. It details the “Legal Compliance and U.S. Persons Minimization Procedures” that the NSA uses to ensure that its signals intelligence (SIGINT) operations accord with the Fourth Amendment. As far as updates go, the 2011 edition of the USSID appears to have been a long time coming: the second page notes that "[t]his USSID supersedes USSID SP0018, dated 27 July 1993, which must now be destroyed.”
The 2011 USSID states that the policy of the United States SIGINT System (USSS) is to target or collect only foreign communications, and to process, retain and disseminate communications inadvertently collected from U.S. persons only in accordance with specific minimization procedures. Minimization is described as key to the constitutionality of NSA’s data-handling operations:
These minimization procedures implement the constitutional principle of "reasonableness" by giving different categories of individuals and entities different levels of protection. These levels range from the stringent protection accorded U.S. citizens and permanent resident aliens in the United States to provisions relating to foreign diplomats in the U.S. These differences reflect yet another main theme of these procedures, that is, that the focus of all foreign intelligence operations is on foreign entities and persons.
The key word here is “focus.” Foreign entities and persons are plainly the target of NSA SIGINT operations, but insofar as the USSID’s project—obtaining foreign intelligence—requires NSA to cast a wider net, the document is dedicated to laying out circumscribed exceptions to the stated rule prohibiting the interception of communications between or concerning U.S. persons.
For example, collection of such data is permitted if (1) the FISA Court approves, (2) the Attorney General approves, (3) the NSA Director approves, or (4) there is an emergency situation, where securing the AG's approval is not practical because (1) of the loss of significant foreign intelligence, (2) a person's life or physical safety is reasonably believed to be in immediate danger, (3) the physical security of a defense installation or government property is reasonably believed to be in immediate danger.
The USSID similarly carves out the circumstances under which NSA can use selection terms that result in the interception of communications to or from a U.S. person, and under which SIGINT reports may include the identification of a U.S. person. For example, NSA may disseminate identifying information about a U.S. person where the information indicates the individual's involvement in international narcotics trafficking activities---or, more broadly, if the information indicates the individual may be involved in a crime that has been or will be committed. There is no indication that the crime need be international in nature.
The document notes that detailed procedures for monitoring radio communications of suspected international narcotics traffickers are included in Annex J, which is not appended to the document itself but “issued separately.” Lo and behold, the second USSID document in our November cache is an edition of Annex J dated April 24, 1986. The annex is only eight pages long and partially redacted. Structurally speaking, it reads like a miniature version of the full USSID, providing for the collection, retention and dissemination of private communications of U.S. persons where certain requirements have been met---that is, where authorization has been obtained from the Attorney General, the FISC, or the U.S. person in question.
The other annexes are directly appended to the 2011 USSID.
- Annex A lays out the standard minimization procedures NSA uses in implementing its electronic surveillance.
- Annex B outlines the parameters under which NSA may provide the FBI operational assistance.
- Annex C lays out the procedures by which NSA may lend SIGINT support to U.S. and allied military exercise command authorities.
- Annex D describes the parameters for USSS testing of electronic equipment.
- Annex E details the procedures for safeguarding the rights of U.S. persons when conducting SIGINT activities.
- Annex F asserts that the USSS may collect and disseminate illicit communications irrespective of the general requirements that apply to communications concerning U.S. persons.
- Annex G describes the training of personnel in the operation and use of SIGINT collection.
- Annex H sets out the consent forms used by NSA's Office of General Counsel (OGC) to obtain and record consent from U.S. persons for SIGINT collection of communications.
- Annex I is the certification form that the Director uses to approve the collection of communications of entities "openly acknowledged to be directed and controlled by a foreign power."