The Two-Way
11:37 am
Wed July 31, 2013

U.S. Declassifies Documents About Surveillance Programs

Originally published on Wed July 31, 2013 2:01 pm

The National Security Agency declassified more documents that shed light on formerly secret programs that collect a vast amount of metadata on the phone calls made in the United States, as well as the electronic communication of foreigners.

In a statement, Director of National Intelligence James Clapper said the release was "in the public interest."

The most significant document is a 17-page ruling (pdf) by the secret Foreign Intelligence Surveillance Court that outlines so-called minimization procedures, or safeguards, the government must follow in order to deal with the data.

The New York Times wraps up the rest of the documents like this:

"The releases also included two formerly classified briefing papers to Congress from 2009 and 2011, when the provision of the Patriot Act that the court relied on to issue that order was up for reauthorization. The papers outlined the bulk collection of 'metadata' logging all domestic phone calls and e-mails of Americans and are portrayed as an 'early warning system' that allowed the government to quickly see who was linked to a terrorism suspect.

" 'Both of these programs operate on a very large scale,' the 2011 briefing paper said, followed by something that is redacted, and then: 'However, as described below, only a tiny fraction of such records are ever viewed by N.S.A. intelligence analysts.' "

All of the documents released include lots of redactions, and at first glance, they don't seem to reveal a lot more detail than what we had already learned from the leaked documents provided to The Guardian and The Washington Post by former NSA contractor Edward Snowden.

One thing that remains a mystery is the legal rationale for allowing the bulk collection of the electronic data of Americans to begin with. A hint is in the briefing documents (pdf) presented to the House Permanent Select Committee on Intelligence.

The government explains that the collection of phone metadata is authorized by section 215 of the USA Patriot Act. In a lot of ways, we've already gone over this explanation when we touched on an October 2011 letter to Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.).

This briefing document, however, points out that no "content" is being collected. In fact, it explains, the program is only collecting information that the Supreme Court has decided is "not protected by the Fourth Amendment."

Remember that is the Executive Branch's interpretation of the law; what many legal scholars and civil libertarians have been waiting for is the Judicial Branch's interpretation.

We'll continue to sift through these documents and seek interpretations. If you find something in them that you think noteworthy, let us know in the comments. We'll update this post with more throughout the day.

Update at 1:31 p.m. ET. Exceptions For Technical Personnel:

One of the interesting passages in the FISC order is where it talks about exceptions for technical personnel. Essentially, the court says, the people who make this data searchable and usable are allowed to query it without having to adhere to the safeguards.

That said, any of the information queried is not allowed to be used for "intelligence analysis purposes."

Update at 12:35 p.m. ET. Seeking To Calm Privacy Fears:

Here's how The Washington Post frames the release of the FISC order:

"It is an apparent effort by the administration to allay privacy concerns raised by the leaking of a secondary court order by former NSA contractor Edward Snowden that documented the NSA's program to collect 'all call detail records' of phone calls from U.S. phone companies for counterterrorism purposes."

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