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March 28th, 2015
The NSA absolutely can not intentionally target U.S. citizens without an individual warrant. Even if you’re the most vocal Edward Snowden supporter in the universe, you have no choice but to acknowledge the truth and accuracy of this statement.
How can I say such a thing? On Thursday, Glenn Greenwald wrote it deep within his latest “bombshell” article for the Guardian: “To intentionally target either of those groups requires an individual warrant.” The “groups” Greenwald referred to here are U.S. persons or residents.
And there you go.
This is easily the biggest news to come out of Thursday’s dispatch from Snowden and Greenwald (or “Snowdenwald,” as I’ve been using as a character-saving portmanteau on Twitter). Not only does it totally decimate CNet’s journalistic blunder from last weekend about the NSA “admitting” to listening to calls without warrants, but it also represents a striking clarification in Greenwald’s reporting, not to mention Snowden’s claims of being able to target any American including the president at his own discretion and without a warrant. The “requires an individual warrant” line isn’t the centerpiece of the article by any stretch. It’s tossed into the mix almost as a throwaway when, in fact, there’s nothing incidental about it at all. I’ll come back to this presently.
The article covers two new Snowden documents from the Department of Justice that were submitted to the Foreign Intelligence Surveillance Court. Document #1 covers the NSA procedure for targeting foreigners for surveillance, and Document #2 covers the “minimization” process for safeguarding the privacy of American citizens. Greenwald’s lede centers around Document #1, and specifically cases in which the calls or emails of American citizens might be “inadvertently” swept up by the NSA and, apparently, used. For something. Turns out, “used” is the new “direct access” in that it’s unclear and potentially misleading, especially if you don’t read the whole article or the accompanying documents. It’s not difficult to histrionically leap to the assumption that the NSA can “use” accidentally-collected data as a back door to pry into your every detail and seek out a reason to hustle you off to Guantanamo.
The way the data is “used” appears to be innocuous — if it’s indeed intercepted and used at all (we don’t know how often this really happens). As you might’ve read, there’s a not insignificant process for destroying such communications known as “minimization,” and this procedure is covered extensively in Document #2. Greenwald writes:
The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.
He goes on to describe various circumstances in which the domestic data that’s “inadvertently” swept up can, under very narrow circumstances, be retained by the NSA and “used” but only after the NSA director has approved the data retention, and for very specific national security reasons. According to Greenwald, those reasons are:
“significant foreign intelligence information”, “evidence of a crime”, “technical data base information” (such as encrypted communications), or “information pertaining to a threat of serious harm to life or property”.
What Greenwald doesn’t mention is that any data that’s “inadvertently” collected from U.S. persons is “anonymized” until and if a warrant is sought and subsequently issued by the FISA court, and an investigation is launched on that U.S. person. According to Kurt Eichenwald, the data is pumped through an algorithm that strips it of proper names, replacing the names with a string of characters called “designators.” So, no, if somehow the hilarious cat meme you emailed to your Mom is accidentally caught up in the system, it’s likely destroyed or, if it’s retained for some reason, it doesn’t contain any of your personal information until after the FISA court approves an individual warrant and the personal information is de-crypted.
Speaking of Eichenwald, most if not all of Greenwald’s new “bombshell” reporting has already been made public. PRISM was covered in Eichenwald’s September, 2012 book, 500 Days, while the minimization process along with what happens to “inadvertently” collected data from U.S. persons was posted in a Vanity Fair article six days ago:
Now, anyone who discusses this process without also mentioning minimization procedures is also either very uninformed or intentionally hyping the story. Minimization is a term of art in the world of NSA intercepts which essentially means “stay out of American citizen’s business.” If information about specific Americans (or even foreigners inside the United States) is captured, those details must be removed from all records and cannot be shared with any other entity in the government unless it is necessary to understand and interpret related foreign intelligence or to protect lives from criminal threats. But passing intelligence information to criminal investigators requires several layers of review and is not easily approved; minimization procedures are meant to insure that information collected by the NSA isn’t used in routine criminal investigations.
This is a much more artfully written and concise interpretation of the same process Greenwald covered on Thursday. Whittled down even further, there’s a chance that one of your emails or phone calls could be accidentally intercepted by the NSA without a warrant. It’s unknown how seldom or often it happens, but when it does, we know for a fact that: 1) it’s not because you were targeted for investigation and surveillance, 2) there’s a good chance the communication will be summarily deleted as soon as it’s discovered, 3) if it’s not destroyed, it’s anonymized, and 4) if anything else needs to happen, it’s done so via stringent criteria and oversight by officials at the highest levels of authority.
Meanwhile, Greenwald, who always manages to cleverly shoehorn his agenda into his hard news reporting, accused the president of fibbing about the process of acquiring a warrant before targeting U.S persons.
…the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans’ call or email information without warrants.
Well, no, it doesn’t clash with what the president said. The president and other officials like FBI director Mueller have explicitly described the targeting of American communications and the use of a warrant to do so — not accidental data collection. Targeting. And targeting requires an individual warrant. Here’s what the president said to Charlie Rose:
…if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails… and have not. They cannot and have not, by law and by rule, and unless they — and usually it wouldn’t be “they,” it’d be the FBI — go to a court, and obtain a warrant. […] …it’s not targeting your emails unless it’s getting an individualized court order
Again, Greenwald’s own words: “To intentionally target either of those groups requires an individual warrant.” It’s also worth noting this Greenwald line: “Once a target is confirmed to be within the US, interception must stop immediately.”
These statements somehow clash with what the president said? Um, how?
An alternate headline for Greenwald’s new article could be, “Shit Happens But There Are Numerous Bureaucratic Procedures To Prevent Shit From Happening.” In other words, based on Document #1, a U.S. person’s data might be accidentally collected when it shouldn’t have been, but when it is, it’s killed. And we have no idea how often this happens.
Sure there are holes and glitches that absolutely need to be addressed, and there’s certainly the potential for abuse somewhere along the line. But the same could be said about any institution — governmental, corporate or otherwise. As we’ve seen with TSA, for example, sometimes people are patted-down who shouldn’t be, leading to unnecessary invasions of privacy. The system isn’t perfect, but until it’s repaired, there appear to be procedures for minimizing any potential hiccups.
So what began two weeks ago as a story about the NSA following your every keystroke as you type it has been shaved down to accidental data collection and no targeting of citizens without a warrant.
[Inspiration for the headline courtesy of Charles Johnson.]
March 28th, 2015
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