NSA : Un-Masking, Leaking . . . or Illegal Interception?

[Intelligence] NSA halts Section 702 'upstream' collection

By Sean D. Carberry Apr 28 2017

As FCW has been reporting, Section 702 has come under fire in recent months due to the alleged “unmasking” and leaking of information about Americans -- namely associates of President Donald Trump -- that was collected in the surveillance of foreign targets.
It is not yet clear if this decision by NSA and the compliance incidents it reported have any relation to investigations into connections between Trump associates and Russian officials, and the NSA would not provide any information beyond its April 28 press releases.

The National Security Agency is halting “upstream” collection of emails that mention targets of foreign surveillance after a review of “inadvertent compliance incidents” involving information on U.S. persons collected under the surveillance program. ?????????????????????????????????
A provision of Section 702 of the Foreign Intelligence Surveillance Act authorizes the NSA to monitor internet traffic without a warrant and sweep up any communications that simply mention a foreign target, regardless of whom the email is actually from or addressed to.
“After considerable evaluation of the program and available technology, NSA has decided that its Section 702 foreign intelligence surveillance activities will no longer include any upstream internet communications that are solely "about" a foreign intelligence target,” the agency announced

Statement

NSA Stops Certain Section 702 "Upstream" Activities

April 28, 2017

Since 2008, the National Security Agency (NSA) and other members of the U.S. Intelligence Community have relied on Section 702 of the Foreign Intelligence Surveillance Act (FISA) to conduct surveillance on specific foreign targets located outside the United States to acquire critical intelligence on issues ranging from international terrorism to cyber security. After a comprehensive review of mission needs, current technological constraints, United States person privacy interests, and certain difficulties in implementation, NSA has decided to stop some of its activities conducted under Section 702.
While the Foreign Intelligence Surveillance Court (FISC) was considering the government's annual application to renew the Section 702 certifications, NSA reported several earlier, inadvertent compliance incidents related to queries involving U.S. person information in 702 "upstream" internet collection. . .

The NSA will still conduct upstream surveillance to collect emails sent to or from a foreign target, and it will continue “downstream” surveillance of communications directly involving a foreign target located outside the U.S., for which it does not require a warrant under 702.

In addition to halting “about” collection, the NSA said it will take steps “as soon as practicable” to delete data already collected in such surveillance.???
Due to limitations of its current technology, however, the agency said “it is unable to completely eliminate ‘about’ communications from its upstream 702 collection without also excluding some of the relevant communications directly ‘to or from’ its foreign intelligence targets.” ???????????
As FCW has been reporting, Section 702 has come under fire in recent months due to the alleged “unmasking” and leaking of information about Americans -- namely associates of President Donald Trump -- that was collected in the surveillance of foreign targets. Some members of Congress threatened in March that they would have a hard time renewing 702 before it expires at the end of 2017 unless the administration prosecutes those responsible for the leaks.

About the Author

Sean Carberry is an FCW staff writer covering defense, cybersecurity and intelligence. Prior to joining FCW, he was Kabul Correspondent for NPR, and also served as an international producer for NPR covering the war in Libya and the Arab Spring. He has reported from more than two-dozen countries including Iraq, Yemen, DRC, and South Sudan. In addition to numerous public radio programs, he has reported for Reuters, PBS NewsHour, The Diplomat, and The Atlantic.Carberry earned a Master of Public Administration from the Harvard Kennedy School, and has a B.A. in Urban Studies from Lehigh University.

Another report from Reuters

Sat Apr 29, 2017 | 11:54am EDT

U.S. spy agency abandons controversial surveillance technique

A U.S. government official familiar with the matter said the change was motivated in part to ensure that Section 702 is renewed before it sunsets on Dec. 31, 2017. FISA has come under increased scrutiny in recent months amid unsubstantiated claims by President Donald Trump and other Republicans that the Obama White House improperly spied on Trump or his associates.

News of the surveillance activity being halted was first reported on Friday by The New York Times, which first revealed its existence in 2013, two months after Snowden leaked intelligence documents to journalists.

 

An additional report from Politico

NSA ends collection of digital communications about foreign targets

By Eric Geller 04/28/17 05:07 PM EDT

Section 702 programs have also been in the spotlight since it was revealed that Trump transition team officials incidentally had their communications swept up through legal government surveillance operations possibly authorized under 702.

While the move was greeted as a positive step by surveillance critics on and off Capitol Hill, privacy advocates say it does little to placate their broader concerns about the programs and vowed to continue a legislative push to amend the law.

Critics believe the programs constitute warrantless and unconstitutional searches on Americans, but proponents defend the programs as vital to collecting information on overseas terrorists and criminals.

 

Another report from The Daily Beast 

NSA Halts Controversial Surveillance Tactic of Collecting American Emails About Foreign Targets

By Betsy Woodruff 04.28.17 10:35 AM ET

Officials tell The Daily Beast the decision came as a result of intel analysts failing to comply with measures designed to protect citizens’ constitutional rights.

The National Security Agency will no longer use a controversial surveillance tactic that lets the spy agency sift through electronic communications to find communications about its surveillance targets, according to an official who has been briefed on a pending ruling from the secretive Foreign Intelligence Surveillance Court (FISC).

The FISC ruling is expected to be publicized soon, and to indicate that the NSA has stopped using this surveillance tactic because it couldn’t fully comply with procedures designed to protect Americans’ constitutional rights.

The NSA’s apparent struggles to comply with minimization procedures may be the reason the FISC it didn’t authorize any surveillance under Section 702, as indicated by a report on the court released last week.

The NSA’s decision to end “about” collection is also significant because the agency previously told the Privacy and Civil Liberties Oversight Board (PCLOB)––a bipartisan watchdog agency––that it would be difficult to stop “about” collection without stopping all “upstream surveillance.” The term “upstream surveillance” refers to the NSA’s practice of scanning communications in bulk as they pass over the Internet backbone, and saving copies of any that contained a term on the agency’s list of selectors.

This new ruling could mean one of two things:
1. that either the NSA misinformed the PCLOB when it said it probably couldn’t stop doing “about” collection without stopping all “upstream surveillance,” or
2. it found a way to do the former without doing the latter.

Regardless, this is a major change in how the U.S. government spies on foreigners it’s trying to surveil. And it’s the rare restriction in surveillance that has happened without Congressional involvement.