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US government declassifies court order on NSA surveillance as pressure builds

A surveillance document declassified on Wednesday details the ability of National Security Agency algorithms and "technical personnel" to search through the NSA's vast databases of phone records from hundreds of millions of Americans.

Disclosed before the contentious Senate judiciary committee hearing on Wednesday, the April 25 document from the secret surveillance court known as the Fisa court bolstered assertions made by top intelligence officials about the restrictions on their ability to sift through the so-called "metadata" they collect in bulk.

But civil libertarians criticized the court's finding that mass collection of Americans' phone records is "relevant" to a terrorism investigation - the central contention for the legality of the bulk collection under Section 215 of the Patriot Act.

The heavily redacted document, from April, sets out the rules that govern a related order covering the Verizon telephone provider, published by the Guardian in June and provided by whistleblower Edward Snowden.

"NSA shall ensure, through adequate and appropriate technical and management controls, that queries of the BR [business records] metadata for intelligence analysis purposes will be initiated only using a selection term that has been RAS-approved," former Fisa court judge Roger Vinson wrote on April 25, using an acronym for "reasonable articulable suspicion", the legal standard NSA must meet to search the database - a standard judges do not certify the NSA has met before each search.

Senior US intelligence officials have repeatedly cited that standard of evidence as proof that they do not actually spy on Americans, claiming that the actual spying occurs when NSA searches through its database, rather than the basic fact of the bulk records collection.

But Vinson also wrote that the NSA's "technical personnel may query the BR metadata using selection terms that have not been RAS-approved and may share the results of those queries with other authorized personnel responsible for these purposes, but the results of any such queries will not be used for intelligence analysis purposes".

A footnote in the document specifies that "technical personnel responsible for NSA's corporate infrastructure and the transmission of BR metadata" may handle the phone records data without the "special training" in court-ordered restrictions undergone by NSA intelligence analysts. They do not require "reasonable articulable suspicion" to do so.

NSA algorithms, and not just human analysts, search through the databases. Vinson specified that searches through NSA's phone records database can occur "either by manual analyst query or through the automated query process described below."

"This automated query process queries the collected BR metadata (in a 'collection store') with RAS-approved selection terms and returns the hop-limited results from those queries to a 'corporate store,'" Vinson wrote.

"Hops" is a technical term to describe degrees of connectedness between people or their data. The specifics of the automated process were not disclosed in the public document.

Among the oversight mechanisms spelled out in the Fisa court's order is a requirement that during the 90-day lifespan of each such order, the NSA provide the court with a "statement of the number of instances in which NSA has shared, in any form, results from the queries of the BR metadata that contain US person information, in any form, with anyone outside NSA."

Successive Fisa court judges have permitted the program's renewal for seven years. NSA statements on disseminating US person information remain secret.

Vinson's order also accepted a key legal claim of the government: that the bulk, ongoing collection of millions of Americans' phone data was relevant to ongoing terrorism and espionage cases, the standard spelled out under Section 215 of the Patriot Act.

"It can be things that will lead you to things you need," Cole said, arguing that the actual surveillance occurs not when NSA collects the phone records but when NSA analysts sift through it.

Senators of both parties on the Judiciary Committee criticized that logic.

"I assure you as a recovering lawyer myself there is no context in civil discovery or otherwise to take in information from each and every American who owns a telephone," senator Mike Lee (Republican, Utah) said. Leahy questioned the "limits under this theory" and wondered why they permit NSA to also collect firearms records, bookmarked Internet searches, medical records or credit card information.

"I may not need to collect all the credit card numbers" to know if a terrorist suspect is purchasing something potentially dangerous, Cole answered.

In addition to calling the bulk surveillance "relevant" to an investigation, Vinson also accepted the government's claim that the bulk, ongoing phone records collection amounted to "tangible things [that] could be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation.

Jameel Jaffer, the deputy legal director of the ACLU, criticized Vinson's reasoning. "Saying that the metadata of all Americans' phone calls, including ones that haven't happened yet, are 'relevant' to an investigation stretches that word beyond any meaning," Jaffer told the Guardian.

"Clearly Congress intended for Section 215 of the Patriot Act to be a tool for investigating terrorists and spies, not for tracking the communications of all Americans. No prosecutor would seek a grand jury subpoena of this scope and no judge in a criminal or civil procedure would enforce one."

[Source: By Spencer Ackerman in Washington, The Guardian, 31Jul13]

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