FISA: 702 Collection

The NSA Documents, Part V: The Communications with Congress

By Benjamin Wittes, Raffaela Wakeman, Ritika Singh
Thursday, August 22, 2013, 2:51 PM

Yesterday’s cache of declassified materials also sheds important light on the administration’s interactions with Congress over intelligence oversight---not just its interactions with the relevant intelligence committees, but those with the rank-and-file members too. Many members of Congress have spent the last few months appearing shocked by information leaked about the NSA’s surveillance programs. The documents released yesterday, however, make clear that any member of Congress who did not know what was going on with respect to Section 702 surveillance did not choose to know---including with regard to the government’s 2011 setback before the FISA Court.

In this post we’ll summarize three executive branch communications to the intelligence committees in Congress regarding the government’s surveillance activities under Section 702 of the FISA Amendments Act (FAA): testimony for a December 2011 hearing, testimony for a February 2012 hearing, and a paper submitted in May 2012. All are focused on the legislative branch’s reauthorization of the FAA, which was set to expire at the end of 2012.

The 2011 and 2012 Statements to Congress

In December 2011, Assistant Attorney General Lisa Monaco, NSA Deputy Director John Inglis, and the Office of the Director of National Intelligence (ODNI) General Counsel Robert Litt, delivered a joint statement to the House Permanent Select Intelligence Committee at a hearing on reauthorizing the FAA. The group testified before the Senate Select Intelligence Committee approximately two months later, in February 2012, on the same issue. The FAA was ultimately successfully extended for five years by both chambers of Congress in December 2012.

Both testimonies are heavily redacted; in fact, the only sections in each that was declassified yesterday is the part that deals with the October 3, 2011 FISC opinion---which was declassified at the same time and was discussed in Part II of this series. That opinion struck down the government’s “rules governing the retention of certain non-targeted Internet communications.” The December 8, 2011 statement is somewhat more fulsome than the February 2012 statement, which offers a condensed version of the same information.

The December 8 statement categorizes the FISC opinion as “exhaustive” and points to it as emblematic of the FISC’s rigor, and as justification for avoiding labeling the court a “rubber stamp.” The statement describes the NSA’s upstream collection efforts, which it defines as telephone and electronic communications intercepted when they are transmitted across a U.S.-based Internet “backbone.” The statement acknowledges the limits of upstream collection, saying that there is inevitable incidental collection of solely domestic communications---it, however, constitutes only about 0.02 percent of all collection.

The FISC opinion, as the statement summarizes it to the committee, upheld the NSA’s upstream collection practices and also reaffirmed that the government did not need to obtain a warrant before acquiring foreign intelligence information under §702. The FISC opinion, however, did take issue with the retention of certain non-targeted communications acquired through NSA’s upstream collection, ruling that the procedures did not adequately protect U.S. person information and were thus inconsistent with the requirements of §702. The court further held, the administration told Congress, that the NSA’s acquisition and minimization procedures for handling these communications did not satisfy the reasonableness requirement in the Fourth Amendment.

In light of this ruling, the statements inform the committees, the Attorney General submitted amended procedures to the FISC on Oct. 31, 2011, which “create more rigorous rules governing the retention . . . as well as NSA analysts’ exposure to, and use of, non-targeted communications.” The FISC approved the amended procedures on November 30, 2011, saying that they met “the applicable statutory and constitutional requirements,” the administration reported.

May 2012 Report to Congressional Intelligence Committees

Shortly after the February hearing, in May 2012, the DNI and the Department of Justice delivered a classified document describing the government’s activities as authorized by §702 to the House Permanent Select Committee on Intelligence and to the Senate Select Committee on Intelligence to inform the Congress’s debate over reauthorizing the FAA. Like the two statements described above, it gives an account of the FISC opinion and the adjustments the government made to upstream collection to satisfy Judge Bates.

Critically, however, its distribution was not limited to the intelligence committees. In the cover letter, the administration specifically wrote: “We believe that making this document available to all Members of Congress is an effective way to inform the legislative debate about reauthorization of Title VII of FISA.” It asked the intelligence committees to create a secure location for members and cleared staff to review it. Here is the Senate intelligence committee's letter announcing that it was doing just that.

The discussion of the FISC issue takes place on page 5 of the administration's white paper as an illustration of the effectiveness of the section 702 compliance regime. In response to Judge Bates's opinion, the report notes, the government quickly assessed and proposed reforms to the relevant method of collection, reforms the FISC approved in November 2011. The relevant discussion, which is similar to the December and February testimony language, reads in its entirety:

One recent event demonstrates how this oversight regime works and how challenging collection be in the complex and rapidly evolving Internet environment. On October 3, 2011, the FISC issued an opinion addressing the Government’s submission of replacement certifications under section 702. Although the FISC upheld the bulk of the Government’s submission, it denied in part the Government’s requests to reauthorize the certifications because of its concerns about the rules governing the retention of certain non-targeted Internet communications---so-called multi-communication transactions or MCTs---acquired through NSA’s upstream collection. The FISC recognized, however, that the Government may be able to “tailor the scope of NSA’s upstream collection, or adopt more stringent post-acquisition safeguards” in a manner that would satisfy its concerns, and suggested a number of possibilities as to how this might be done. In response to this opinion, the NSA, Department of Justice, and ODNI worked to correct the deficiencies identified by the Court. On November 30, the FISC granted the Government’s request for approval of the amended procedures, stating that, with regard to information acquired pursuant to the 2011 certifications, “the government has adequately corrected the deficiencies identified in the October 3 Opinion,” and that the amended procedures, when “viewed as a whole, meet the applicable statutory and constitutional requirements.” These amended procedures continue to allow for the upstream collection of MCTs; however, they also create more rigorous rules governing the retention of MCTs as well as NSA analysts’ exposure to, and use of, non-targeted communications. The Government’s extensive efforts over several months to address this matter, and the FISC’s exhaustive analysis of it, demonstrates how well the existing oversight regime works in ensuring that collection is undertaken in conformity with the statute and Court-approved procedures. This issue was also fully briefed to the appropriate congressional committees, again highlighting the important role that Congress plays in overseeing these vital intelligence activities.

This white paper is significantly broader than just an account of this particular episode. It is an overview of surveillance programs under §702, more generally: the reasoning behind the provisions; targeting and minimization procedures under them; the oversight role of the FISC, the ODNI, the DOJ, and Congress; and the requirements that §702 authorizations be reauthorized by the FISC at least every year.

It has a discussion of targeting procedures. The section on compliance describes the “extensive oversight” process conducted by the IC---in which noncompliance with targeting and minimization procedures must be reported to the DOJ and the ODNI and in which a joint NSD-ODNI team reviews targeting decisions “routinely,” at least once every 60 days. This team also investigates potential noncompliance episodes and reviews each IC agency’s targeting and minimization procedures.

The Attorney General and the DNI then base their semiannual report to Congress that addresses compliance with targeting and minimization procedures on these very reviews. Included in the report must be copies of all FISC documents (orders, opinions, significant pleadings, certifications, directives), as well as compliance assessments. The FISC, for its part, receives the NSD-DNI team assessments, parts of the semiannual report to Congress, and separate, quarterly reports. The IC and DOJ use the semiannual review themselves, to evaluate and consider changing existing programs, as well as ensure that Americans’ privacy is adequately protected.

Of course, given that this document was disseminated in order to strengthen the argument on the Hill in favor of re-authorization, a portion of it does just that, focusing on the intelligence implications of not doing so; the built-in protections provided to American citizens; and the benefits of collection under the §702 rubric rather than an alternative. It touts the bipartisan nature of the FAA’s enactment, and the extensive public debate that came prior to Congressional approval. It refers to the lengthy record of activities provided to the relevant oversight committees.

The government discusses the burdens that it would endure if §702 isn’t reauthorized: it argues that §702 activities don’t sacrifice protections guaranteed to Americans by the Constitution. It also finds that surveillance collection for foreign targets is a safer enterprise, as it takes place within the United States, rather than in a foreign country. The paper’s coverage extends beyond §702 activities, too, exploring activities under §703 and §704.

The final unredacted item in the white paper is an account of one of seven (it appears) instances in which collection under 702 resulted in valuable national security information: the plot to bomb the New York City subway system, halted when an email caught by §702 collection from a target known to be affiliated with Al Qaeda was sent to Najibullah Zazi, the man ultimately arrested in 2009 in Colorado for planning the attack.

For present purposes, however, the striking feature of this document is not its advocacy---whether one agrees or disagrees with it---but the fact that it presented to any member of Congress who wanted to be informed a succinct but accurate summary of the administration’s challenging recent interactions with the FISC.