FISA: 702 Collection

The NSA Documents, Part IV: The September 2012 FISC Opinion

By Benjamin Wittes, Sean Mirski
Thursday, August 22, 2013, 10:12 AM

The one major remaining issue after Judge Bates’s November 2011 opinion involved what to with communications transactions acquired under the old minimization procedures, which Judge Bates had struck down the previous month. This is the subject of Judge Bates’s final opinion in the cache of documents released yesterday, an opinion dated September 25, 2012. Or, to be precise, it is the subject of the portion of this opinion that has been released---as much of the opinion remains classified.

In the provided portion of the 2012 opinion, Judge Bates begins by recapping the story thus far--which we covered in Part II and Part III of this series and will not go over again here.

The new opinion next notes that any “overcollection” that had happened up until the amended minimization procedures were adopted potentially implicates 50 U.S.C. § 1809(a)(2), which makes it illegal to “disclose[] or use[] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized” by statute. So there’s a remaining remedial problem that needs to be addressed.

The government, Judge Bates reports, took three primary steps to mitigate this potential problem. First, in late 2011, it began applying certain parts of the amended minimization procedures to past acquisitions. It could not apply all of the amended procedures for technical reasons, but it did so retroactively where it could.

Second, in April 2012, the government let the FISC know that the NSA had made a “corporate decision” to purge any and all identifiable data that it had acquired through its upstream collection efforts prior to the amended minimization procedures. That effort, Judge Bates reports, is now complete to the extent that is technically feasible. In other words, the NSA responded to the residual problem with a nuclear strike against the relevant data.

Another concern was whether any reports issued by the NSA relied on information from the pre-Nov. 30, 2011 acquisitions. The government was unable to confirm that all of these reports raised no issue Section 1809(a)(2) issues, so the NSA agreed to inform the reports’ recipients that they should not use or share any information included in the reports without getting approval first.

Based on these three remedial efforts, Judge Bates concluded that the steps taken by the government “greatly reduce the risk that NSA will run afoul of Section 1809(a)(2) in its handling of the past upstream acquisitions made under color of Section 702.”

The available part of the 2012 opinion then cryptically concludes: “In light of the foregoing, it appears to the Court that the outstanding issues raised by NSA’s upstream collection of Internet transactions have been resolved, subject to the discussion of changes to the minimization procedures that appears below.” This discussion “below,” however, is redacted.