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I got some reactions to my post last night about NSA minimization procedures that I didn’t expect. You can click the link for the background, but for now I just want to summarize things in a few quick bullet points:
For technical reasons, it’s sometimes impossible to know with certainty whether a phone call or email is domestic or foreign. This means that even if NSA is 100 percent sincere about surveilling only non-U.S. persons, sometimes it will make mistakes. I think this point is uncontroversial.
On paper, NSA’s procedures for dealing with inadvertent collection of domestic communications are fairly strict. They have to jump through a fair number of hoops to start surveillance in the first place, and if they make a mistake they’re required to immediately stop the surveillance and destroy the information they’ve collected.
That said, there are several problems. First, even on paper there are plenty of loopholes. NSA is allowed to retain and disseminate content if they decide it has intelligence value, suggests a threat of harm, or contains evidence of a crime. That covers quite a bit of territory, as Alex Tabarrok points out here.
Second, in practice these loopholes might even be bigger than that. A lot of these decisions are based on the judgment of analysts, not judges, and oversight is very weak. There’s essentially no outside oversight on a day-to-day basis, and the inspector general has specifically declined to investigate how many U.S. persons end up being spied on.
This all creates big problems with incentives. Glenn Greenwald tweets that incidental collection of US citizens may have been “a key point/objective” of the 2008 FISA Amendments Act, and that’s quite possible. The number of loopholes, combined with weak oversight, gives NSA an incentive to “accidentally” collect a lot of domestic surveillance so that they can trawl through it and keep the stuff allowed by the minimization procedures. Needless to day, other agencies, such as the FBI, would applaud this.
Glenn believes that the key takeaway from all this is that President Obama just wasn’t telling the whole truth when he said that NSA programs “do not involve listening to people’s phone calls, do not involve reading the e-mails of U.S. citizens.” I think that’s fair enough. Even if you grant some leeway for legitimate mistakes, the size of the loopholes and the lack of oversight make a mockery of that statement. Obama can accurately say that this doesn’t happen without a warrant—a broad 702 warrant, but a warrant nonetheless—but he can’t say it doesn’t happen.