By Kurt Opsahl and Mark Rumold | EFF | June 21, 2013
Yesterday, the Guardian released two previously-classified documents describing the internal “minimization” and “targeting” procedures used by the NSA to conduct surveillance under Section 702. These procedures are approved by the Foreign Intelligence Surveillance Court (FISC) on an annual basis and are supposed to serve as the bulwark between the NSA’s vast surveillance capabilities and the private communications of Americans. As we noted earlier today, the procedures, themselves, aren’t reassuring: far too much discretion is retained by NSA analysts, the procedures frequently resolve doubt in favor of collection, and information is obtained that could otherwise never be obtained without a warrant.
Which would be bad enough, if it were the end of the story. But it’s not.
The targeting and minimization documents released yesterday are dated a few months after the first publicly known scandal over the new FAA procedures: In April 2009, the New York Times reported that Section 702 surveillance had “intercepted the private e-mail messages and phone calls of Americans . . . on a scale that went beyond the broad legal limits established by Congress.” In June 2009, the Times reported that members of Congress were saying NSA’s “recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged.” Rep. Rush Holt described the problems as “so flagrant that they can’t be accidental.”
Presumably, following these “flagrant” abuses (and likely in response to the Congressional criticism of the original procedures), the government refined the procedures. The documents released yesterday are the “improved” targeting and minimization procedures, which appear to have been reused the following year, in 2010, in the FISC’s annual certification.
But these amended procedures still didn’t stop illegal spying under Section 702.
Unless the government substantially changed the procedures between August 2010 and October 2011, these are the very procedures that the FISC eventually found resulted in illegal and unconstitutional surveillance. In October 2011, the FISC issued an 86-page opinion finding that collection carried out under the NSA’s classified minimization procedures was unconstitutional. The opinion remains secret, but it is very likely that yesterday’s leaked NSA documents show the very minimization procedures the Director of National Intelligence admitted the FISC had found resulted in surveillance that was “unreasonable under the Fourth Amendment” and “circumvented the spirit of the law.”
And for good reason: the procedures are unconstitutional. They allow for the government to obtain and keep huge amounts of information it could never Constitutionally get without a warrant based on probable cause. As we explained, the procedures are designed such that the NSA will routinely fail to exclude or remove United States persons’ communications, and the removal of those communications are wholly entrusted to the “reasonable discretion” of an analyst.
EFF has been litigating to uncover this critical FISC opinion through the Freedom of Information Act and to uncover the “secret law” the government has been hiding from the American public. And EFF isn’t alone in fighting for the release of these documents. A bipartisan coalition of Senators just announced legislation that would require the Attorney General to declassify significant FISC opinions, a move they say would help put an end to precisely this kind of “secret law.”
When the government, and others, claim these procedures ensure your privacy is respected, know this: they’re only telling you half the story.
Take action now — to put an end to secret law, to demand the American public gets the full story, and to finally put an end to the NSA’s domestic spying program.
Related articles
- FISA Court Rejects Catch-22 Secrecy Argument in FOIA Case (eff.org)
- Government Says Secret Court Opinion on Law Underlying PRISM Program Needs to Stay Secret (alethonews.wordpress.com)