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The NSA has begun what is likely to be a determined PR campaign to retain mass spying laws as they head toward expiration at the end of the year.
In a post on its website titled “Section 702 Saves Lives, Protects the Nation and Allies,” America’s surveillance nerve center argues it “relies” on the controversial part of the Foreign Intelligence Surveillance Act (FISA) to “uncover the identities or plans of terrorists.”
The law has “played both a unique and decisive role in national defense,” it goes on, adding that it also “informs” the intelligence community’s “cybersecurity efforts.”
The post then goes on to claim that the NSA’s interpretation of Section 702 enabled it to reveal the identities of “overseas terrorists” responsible for an unspecified attack that resulting in the death of more than 20 people last year and claims it enabled them to “refute the terrorist organization’s denial of any involvement.”
It claims that in that case, the extra intel enabled the US government to launch operations against the unnamed group in question and that its “contribution to the fight probably hadn’t been factored into the adversaries’ schemes.”
The argument is a textbook example of how the intelligence services make their case for continued extraordinary powers even after it’s shown they abused those same powers.
The details are sufficiently vague and limited to prevent any independent analysis while also allowing the snoops to claim necessary operational security. The case is also referenced as if it were but a single example of many times that the NSA’s powers have been used to provide additional national security, but we have no way of knowing whether this was literally one case or one of many as the NSA and associate services refuse to provide broader context or statistics.
This approach of pointing only to the value of such extraordinary powers obscures the larger question of whether the same information could have been revealed by a different method, and ignores whether the resources and trade-offs with privacy and civil rights are sufficiently valuable to be worth continuing them.
However, when it comes to Section 702, the single case provided in this post does not address the biggest problem with the legislation: that, despite its name, the Foreign Intelligence Surveillance Act has increasingly been used to spy on Americans.
Under the NSA’s highly questionable interpretation of Section 702, the agency has gathered huge amounts of data on an unknown number of US citizens by claiming that it can grab and store information on anyone connected to a foreign target.
How many American citizens? The NSA refuses to say, and has done so for years. Having provided excuse after excuse for why it is unable to produce such a figure, in June the spy nerds gave up any pretense that it was going to do so.
That led to a fiery exchange between Senator Ron Wyden (D-OR), who has acted as a watchdog on the intelligence services’ powers in his position as a member of the US Senate’s Intelligence Committee, and director of national intelligence Daniel Coats back in June.
“You promised that you would provide a ‘relevant metric’ for the number of law-abiding Americans who are swept up in the FISA 702 searches,” Wyden barked at Coats. “This morning you went back on that promise.”
Coats responded: “What I pledged to you is I would make every effort to try to find out why we were not able to come to a specific number of collection of US persons… There were extensive efforts on the part of the NSA to get you an appropriate answer – they were not able to do that…”
Wyden angrily interjected: “Respectfully, that’s not what you said. You said: ‘We are working to produce a relevant metric…'”
“But we were not able to do it. Working to do it is different from doing it,” retorted Coats.
It’s not just the storing of information on US citizens – a situation that goes directly against the actual wording of the FISA – that worries lawmakers and privacy groups. Over time it has emerged that the NSA allows the FBI to access that database without limit and to use search terms related to US citizens including their names, email address and telephone numbers, to search for possible incriminating evidence in domestic crimes.
Under significant political pressure, the NSA vowed that it would stop gathering information on anyone and everyone that even mentions a foreign target but it has not said it will reduce its existing database of information or limit its access by other government agencies. There is also nothing to stop the NSA from changing its mind at a later date unless specific changes are made to the law itself.
And that is ultimately what this unusual NSA public post is about: pushing back against efforts to rewrite the law to exclude the NSA from doing many of the things it has bent Section 702’s wording to accommodate.
With Congress required to reauthorize FISA at the end of the year and with lawmakers due to hold hearings in its next session starting in September on what should be done, the NSA is pushing back against a growing consensus that radical changes need to be made to the law to prevent it from being abused.
Tech firms have already proposed five very specific changes to the law – the first of which is to explicitly ban the broader targeting of anyone connected to a foreign target a permanent part of the law.
They also want: agencies like the FBI to get a warrant before searching the 702 database; the wording tightened up so the intelligence services have to specifically identify individuals rather than insist on access to all data within which they will search for individuals; better oversight of the process; and increased transparency over the number and type of requests made under this section of the law.
Recent investigations into declassified documents have also shown that the NSA and FBI routinely violated civil liberties laws during the Obama Administration by carrying out improper searches, sharing raw intelligence data and failing to delete unauthorized intercepts.
In the lead up to the new session of Congress where the future of Section 702 will be decided, a number of organizations have actively opposed the law.
The Electronic Frontier Foundation wants the Supreme Court to explicitly rule that the gathering of intelligence on US citizens through FISA is illegal – bypassing Congressional wheeler dealing altogether.
Even security policy wonk publication Just Security has lambasted the misleading arguments put forward by Section 702 advocates who oppose reform.
We have checked with the Senate and House Judiciary Committees and so far there are no scheduled hearings on the reauthorization of FISA and Section 702 but there are indisputably coming and this week’s post by the NSA is almost certainly just the first shot in a pitched battle that will be fought between now and the end of 2017. ®
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