Congress Intelligence Surveillance & Privacy

Senators Express Concern on 702 Interpretation

Lauren Bateman
Sunday, July 27, 2014, 3:43 PM

Ellen Nakashima at the Washington Post reports that four U.S.

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Ellen Nakashima at the Washington Post reports that four U.S. Senators---Jon Tester, Jeff Merkley, Mark Begich, and John Walsh---wrote a July 24th letter to DNI Clapper expressing their concerns with NSA's interpretation of Section 702 of the FISA Amendments Act of 2008.

They pull heavily from the PCLOB report released earlier this month, in which the Board observed that Section 702 shifts the government's burden from showing "probable cause to believe that an individual targeted is an agent of a foreign power" to identifying "categories of information to be collected, which must meet the statutory definition of foreign intelligence information."

The four Senators conclude that Section 702 collection represents an "unconstitutional violation of privacy rights, wholly inconsistent with American values." (It's worth noting that PCLOB itself reached the opposite conclusion, finding that the core of the Section 702 program is constitutional. The Board warned, though, that certain aspects of the Section 702 program---namely, the breadth of incidental collections, "the use of 'about' collection to acquire Internet communications that are neither to nor from the target of surveillance," and the practice of querying for communications of specific U.S. persons---"push the program close to the line of constitutional reasonableness.")

The letter also included a battery of questions for DNI Clapper:

  • What is the NSA's legal interpretation of "incidental collection" and "inadvertent collection" that allows for the collection and indefinite storage of users content data pursuant to Section 702?
  • What is NSA's definition of "selector?" Please include any and all "selectors" that have been used to query NSA databases.
  • In how many cases has intelligence collected through Section 702 been used to interfere or otherwise thwart a terrorist attack?
  • In how many cases has NSA turned over data collected on an American to law enforcement under Section 702 because, during its search of the data, it discovered a crime not related to terrorism or espionage?
  • What are the targeting and minimization procedures currently in place covering the acquisition, retention, use, and dissemination of any non-publicly available U.S. person information acquired under the Section 702 program?
  • What steps are the Office of the Direction of National Intelligence (ODNI) and the NSA taking to address the concerns and recommendations set forth in the PCLOB and PRB report? Specifically, which recommendations within the PCLOB and PRB reports do the NSA and ODNI plan to adopt, and what is the timeline for implementation of these recommendations?
  • How many American citizens, located in the United States at the time their data was collected, have had information collected, searched and retained as a result of incidental collections and what steps is the ODNI taking to address those concerns?
  • What percent of targets are suspected to have engaged in terrorist activities versus believe to have other foreign intelligence value?
  • Why is "incidentally" collected U.S. content retained when it does not appear to contain any foreign intelligence? As recent news articles have noted, the NSA appears to have retained pictures, emails and other communications that have no relevance to foreign intelligence. Please also advise what protocols the agency follows so that data with no nexus to foreign intelligence is deleted within a reasonable period after collection.
  • How much data collected pursuant to Section 702 is currently stored by the NSA, other members of the IC, or contractors working with the NSA or other members of the IC?
  • What percent of communications obtained are to or from a target, as opposed to "about" a target?
  • What percent of communications collected under Section 702 occur through PRISM collection and what percent are collected through upstream collection? What percent of communications obtained through Section 702 are "multiple communications transactions"?

Lauren Bateman is a student at Harvard Law School, where she is an editor of the Harvard Law Review. She previously worked as a National Security Legislative Correspondent for Senate Majority Leader Harry Reid, and she takes a special interest in legislative procedure. She also interned for the United States Attorney's Office for the District of Nevada, and was a Research Fellow for the Project on National Security Reform. She graduated with a B.A., magna cum laude, in History and Government from The College of William & Mary in 2009.

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