FBI quietly changes its privacy rules for accessing NSA data on Americans
FBI quietly changes its privacy rules for accessing NSA
data on Americans
Exclusive: Classified revisions accepted by secret Fisa
court affect NSA data involving Americans’ international emails, texts and
phone calls
By Spencer Ackerman in New York
Tuesday 8 March 2016 11.27 EST Last modified on Tuesday 8
March 2016 17.02 EST
The FBI has quietly revised its privacy rules for
searching data involving Americans’ international communications that was
collected by the National Security Agency, US officials have confirmed to the
Guardian.
The classified revisions were accepted by the secret US
court that governs surveillance, during its annual recertification of the
agencies’ broad surveillance powers. The new rules affect a set of powers
colloquially known as Section 702, the portion of the law that authorizes the
NSA’s sweeping “Prism” program to collect internet data. Section 702 falls
under the Foreign Intelligence Surveillance Act (Fisa), and is a provision set
to expire later this year.
A government civil liberties watchdog, the Privacy and
Civil Liberties Oversight Group (PCLOB), alluded to the change in its recent
overview of ongoing surveillance practices.
The watchdog confirmed in a 2014 report that the FBI is
allowed direct access to the NSA’s massive collections of international emails,
texts and phone calls – which often include Americans on one end of the conversation.
The activists also expressed concern that the FBI’s “minimization” rules, for
removing or limiting sensitive data that could identify Americans, did not
reflect the bureau’s easy access to the NSA’s collected international
communications.
FBI officials can search through the data, using
Americans’ identifying information, for what PCLOB called “routine” queries
unrelated to national security. The oversight group recommended more safeguards
around “the FBI’s use and dissemination of Section 702 data in connection with
non-foreign intelligence criminal matters”.
As of 2014, the FBI was not even required to make note of
when it searched the metadata, which includes the “to” or “from” lines of an
email. Nor does it record how many of its data searches involve Americans’
identifying details – a practice that apparently continued through 2015, based
on documents released last February. The PCLOB called such searches
“substantial”, since the FBI keeps NSA-collected data with the information it
acquires through more traditional means, such as individualized warrants.
But the PCLOB’s new compliance report, released last
month, found that the administration has submitted “revised FBI minimization
procedures” that address at least some of the group’s concerns about “many” FBI
agents who use NSA-gathered data.
“Changes have been implemented based on PCLOB
recommendations, but we cannot comment further due to classification,” said
Christopher Allen, a spokesman for the FBI.
Sharon Bradford Franklin, a spokesperson for the PCLOB,
said the classification prevented her from describing the rule changes in
detail, but she said they move to enhance privacy. She could not say when the
rules actually changed – that, too, is classified.
“They do apply additional limits” to the FBI, Franklin
said.
Timothy Barrett, a spokesman for the office of the
director of national intelligence, also confirmed the change to FBI
minimization rules.
Barrett also suggested that the changes may not be hidden
from public view permanently.
“As we have done with the 2014 702 minimization
procedures, we are considering releasing the 2015 procedures. Due to other
ongoing reviews, we do not have a set date that review will be completed,” he
said.
Until that hypothetical release, it remains unknown
whether the FBI will now make note of when and what it queries in the NSA data.
The PCLOB did not recommend greater record-keeping.
Last February, a compliance audit alluded to imminent
changes to the FBI’s freedom to search the data for Americans’ identifying
information.
“FBI’s minimization procedures will be updated to more
clearly reflect the FBI’s standard for conducting US person queries and to
require additional supervisory approval to access query results in certain
circumstances,” the review stated.
The reference to “supervisory approval” suggests the FBI
may not require court approval for their searches – unlike the new system
Congress enacted last year for NSA or FBI acquisition of US phone metadata in
terrorism or espionage cases.
Privacy advocates say that this leeway for searches that
NSA and FBI officials enjoy is a “backdoor” around warrants that the law should
require. In 2013, documents leaked to the Guardian by Edward Snowden revealed
an internal NSA rule that Senator Ron Wyden has called the “backdoor search
provision”, for instance.
While the NSA performs warrantless collection, internal
rules permit the FBI to nominate surveillance targets. Those targets are
supposed to be non-Americans abroad, but Americans’ data is often swept up in
the surveillance.
The legal underpinnings for the dragnet, a 2008 amendment
to the Foreign Intelligence Surveillance Act, are set to expire this year. A
scheduled expiration of the Patriot Act last year gave critical leverage to
legislators who wanted to rein in the bulk collection of domestic phone
records, and intelligence officials last month implored Congress to reauthorize
the measure wholesale.
“Reasonable people could and did argue about how important
the telephone metadata collection was,” FBI director James Comey told the House
intelligence committee last month. “This is not even a close call. This is – if
we lost this tool, it would be a very bad thing for us.”
Several civil-libertarian legislators have vowed to push
for an expiration of Section 702, arguing that it represents a growing
surveillance authority that has moved beyond terrorism and espionage, and into
the hunt for general weaknesses in the internet. The chief lawyer for the intelligence
community, Robert Litt, said in 2014 that the law provides surveillance
authorities the powers are “not only about terrorism, but about a wide variety
of threats to our nation”.
A representative for the Fisa court deferred comment to
the administration.
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