Vorbericht des Expertengremiums „Privacy and Civil Liberties Oversight Board" im Auftrag von US-Präsident Barack Obama zu den NSA-Abhörpraktiken, 2.7.2014 (engl. Originalfassung)
In 2008, Congress enacted the FISA Amendments Act, which made changes to the Foreign Intelligence Surveillance Act of 1978 (“FISA”). Among those changes was the addition of a new provision, Section 702 of FISA, permitting the Attorney General and the Director of National Intelligence to jointly authorize surveillance conducted within the United States but targeting only non-U.S. persons reasonably believed to be located outside the United States. The Privacy and Civil Liberties Oversight Board (“PCLOB”) began reviewing implementation of the FISA Amendments Act early in 2013, shortly after the Board began operations as an independent agency.9 The PCLOB has conducted an in-depth review of the program now operated under Section 702, in pursuit of the Board’s mission to review executive branch actions taken to protect the nation from terrorism in order to ensure “that the need for such actions is balanced with the need to protect privacy and civil liberties.”10 This Executive Summary outlines the Board’s conclusions and recommendations.
I. Overview of the Report
A. Description and History of the Section 702 Program
Section 702 has its roots in the President’s Surveillance Program developed in the immediate aftermath of the September 11th attacks. Under one aspect of that program, which came to be known as the Terrorist Surveillance Program (“TSP”), the President authorized interception of the contents of international communications from within the United States, outside of the FISA process. Following disclosures about the TSP by the press in December 2005, the government sought and obtained authorization from the Foreign Intelligence Surveillance Court (“FISA court”) to conduct, under FISA, the collection that had been occurring under the TSP. Later, the government developed a statutory framework specifically designed to authorize this collection program. After the enactment and expiration of a temporary measure, the Protect America Act of 2007, Congress passed the FISA Amendments Act of 2008, which included the new Section 702 of FISA. The statute provides a procedural framework for the targeting of non-U.S. persons reasonably believed to be located outside the United States to acquire foreign intelligence information.
Section 702 permits the Attorney General and the Director of National Intelligence to jointly authorize surveillance targeting persons who are not U.S. persons, and who are reasonably believed to be located outside the United States, with the compelled assistance of electronic communication service providers, in order to acquire foreign intelligence information. Thus, the persons who may be targeted under Section 702 cannot intentionally include U.S. persons or anyone located in the United States, and the targeting must be conducted to acquire foreign intelligence information as defined in FISA. Executive branch authorizations to acquire designated types of foreign intelligence under Section 702 must be approved by the FISA court, along with procedures governing targeting decisions and the handling of information acquired.
Although U.S. persons may not be targeted under Section 702, communications of or concerning U.S. persons may be acquired in a variety of ways. An example is when a U.S. person communicates with a non-U.S. person who has been targeted, resulting in what is termed “incidental” collection. Another example is when two non-U.S. persons discuss a U.S. person. Communications of or concerning U.S. persons that are acquired in these ways may be retained and used by the government, subject to applicable rules and requirements. The communications of U.S. persons may also be collected by mistake, as when a U.S. person is erroneously targeted or in the event of a technological malfunction, resulting in “inadvertent” collection. In such cases, however, the applicable rules generally require the communications to be destroyed.
Under Section 702, the Attorney General and Director of National Intelligence make annual certifications authorizing this targeting to acquire foreign intelligence information, without specifying to the FISA court the particular non-U.S. persons who will be targeted. There is no requirement that the government demonstrate probable cause to believe that an individual targeted is an agent of a foreign power, as is generally required in the “traditional” FISA process under Title I of the statute. Instead, the Section 702 certifications identify categories of information to be collected, which must meet the statutory definition of foreign intelligence information. The certifications that have been authorized include information concerning international terrorism and other topics, such as the acquisition of weapons of mass destruction.
Section 702 requires the government to develop targeting and “minimization” procedures that must satisfy certain criteria. As part of the FISA court’s review and approval of the government’s annual certifications, the court must approve these procedures and determine that they meet the necessary standards. The targeting procedures govern how the executive branch determines that a particular person is reasonably believed to be a non-U.S. person located outside the United States, and that targeting this person will lead to the acquisition of foreign intelligence information. The minimization procedures cover the acquisition, retention, use, and dissemination of any non–publicly available U.S. person information acquired through the Section 702 program.
Once foreign intelligence acquisition has been authorized under Section 702, the government sends written directives to electronic communication service providers compelling their assistance in the acquisition of communications. The government identifies or “tasks” certain “selectors,” such as telephone numbers or email addresses, that are associated with targeted persons, and it sends these selectors to electronic communications service providers to begin acquisition. There are two types of Section 702 acquisition: what has been referred to as “PRISM” collection and “upstream” collection.
In PRISM collection, the government sends a selector, such as an email address, to a United States-based electronic communications service provider, such as an Internet service provider (“ISP”), and the provider is compelled to give the communications sent to or from that selector to the government. PRISM collection does not include the acquisition of telephone calls. The National Security Agency (“NSA”) receives all data collected through PRISM. In addition, the Central Intelligence Agency (“CIA”) and the Federal Bureau of Investigation (“FBI”) each receive a select portion of PRISM collection.
Upstream collection differs from PRISM collection in several respects. First, the acquisition occurs with the compelled assistance of providers that control the telecommunications “backbone” over which telephone and Internet communications transit, rather than with the compelled assistance of ISPs or similar companies. Upstream collection also includes telephone calls in addition to Internet communications. Data from upstream collection is received only by the NSA: neither the CIA nor the FBI has access to unminimized upstream data. Finally, the upstream collection of Internet communications includes two features that are not present in PRISM collection: the acquisition of so-called “about” communications and the acquisition of so-called “multiple communications transactions” (“MCTs”). An “about” communication is one in which the selector of a targeted person (such as that person’s email address) is contained within the communication but the targeted person is not necessarily a participant in the communication. Rather than being “to” or “from” the selector that has been tasked, the communication may contain the selector in the body of the communication, and thus be “about” the selector. An MCT is an Internet “transaction” that contains more than one discrete communication within it. If one of the communications within an MCT is to, from, or “about” a tasked selector, and if one end of the transaction is foreign, the NSA will acquire the entire MCT through upstream collection, including other discrete communications within the MCT that do not contain the selector.
Each agency that receives communications under Section 702 has its own minimization procedures, approved by the FISA court, that govern the agency’s use, retention, and dissemination of Section 702 data.11 Among other things, these procedures include rules on how the agencies may “query” the collected data. The NSA, CIA, and FBI minimization procedures all include provisions permitting these agencies to query data acquired through Section 702, using terms intended to discover or retrieve communications content or metadata that meets the criteria specified in the query. These queries may include terms that identify specific U.S. persons and can be used to retrieve the already acquired communications of specific U.S. persons. Minimization procedures set forth the standards for conducting queries. For example, the NSA’s minimization procedures require that queries of Section 702–acquired information be designed so that they are “reasonably likely to return foreign intelligence information.”
The minimization procedures also include data retention limits and rules outlining circumstances under which information must be purged. Apart from communications acquired by mistake, U.S. persons’ communications are not typically purged or eliminated from agency databases, even when they do not contain foreign intelligence information, until the data is aged off in accordance with retention limits.
Each agency’s adherence to its targeting and minimization procedures is subject to extensive oversight within the executive branch, including internal oversight within individual agencies as well as regular reviews conducted by the Department of Justice (“DOJ”) and the Office of the Director of National Intelligence (“ODNI”). The Section 702 program is also subject to oversight by the FISA court, including during the annual certification process and when compliance incidents are reported to the court. Information about the operation of the program also is reported to congressional committees. Although there have been various compliance incidents over the years, many of these incidents have involved technical issues resulting from the complexity of the program, and the Board has not seen any evidence of bad faith or misconduct.
B. Legal Analysis
The Board’s legal analysis of the Section 702 program includes an evaluation of whether it comports with the terms of the statute, an evaluation of the Fourth Amendment issues raised by the program, and a discussion of the treatment of non-U.S. persons under the program.
In reviewing the program’s compliance with the text of Section 702, the Board has assessed the operation of the program overall and has separately evaluated PRISM and upstream collection. On the whole, the text of Section 702 provides the public with transparency into the legal framework for collection, and it publicly outlines the basic structure of the program. The Board concludes that PRISM collection is clearly authorized by the statute and that, with respect to the “about” collection, which occurs in the upstream component of the program, the statute can permissibly be interpreted as allowing such collection as it is currently implemented.
The Board also concludes that the core of the Section 702 program — acquiring the communications of specifically targeted foreign persons who are located outside the United States, upon a belief that those persons are likely to communicate foreign intelligence, using specific communications identifiers, subject to FISA court–approved targeting rules and multiple layers of oversight — fits within the “totality of the circumstances” standard for reasonableness under the Fourth Amendment, as that standard has been defined by the courts to date. Outside of this fundamental core, certain aspects of the Section 702 program push the program close to the line of constitutional reasonableness. Such aspects include the unknown and potentially large scope of the incidental collection of U.S. persons’ communications, the use of “about” collection to acquire Internet communications that are neither to nor from the target of surveillance, and the use of queries to search for the communications of specific U.S. persons within the information that has been collected. With these concerns in mind, this Report offers a set of policy proposals designed to push the program more comfortably into the sphere of reasonableness, ensuring that the program remains tied to its constitutionally legitimate core.
Finally, the Board discusses the fact that privacy is a human right that has been recognized in the International Covenant on Civil and Political Rights (“ICCPR”), an international treaty ratified by the U.S. Senate, and that the treatment of non-U.S. persons in U.S. surveillance programs raises important but difficult legal and policy questions. Many of the generally applicable protections that already exist under U.S. surveillance laws apply to U.S. and non-U.S. persons alike. The President’s recent initiative under Presidential Policy Directive 28 on Signals Intelligence (“PPD-28”) will further address the extent to which non-U.S. persons should be afforded the same protections as U.S. persons under U.S. surveillance laws.12 Because PPD-28 invites the PCLOB to be involved in its implementation, the Board has concluded that it can make its most productive contribution in assessing these issues in the context of the PPD-28 review process.
C. Policy Analysis
The Section 702 program has enabled the government to acquire a greater range of foreign intelligence than it otherwise would have been able to obtain — and to do so quickly and effectively. Compared with the “traditional” FISA process under Title I of the statute, Section 702 imposes significantly fewer limits on the government when it targets foreigners located abroad, permitting greater flexibility and a dramatic increase in the number of people who can realistically be targeted. The program has proven valuable in the government’s efforts to combat terrorism as well as in other areas of foreign intelligence. Presently, over a quarter of the NSA’s reports concerning international terrorism include information based in whole or in part on Section 702 collection, and this percentage has increased every year since the statute was enacted. Monitoring terrorist networks under Section 702 has enabled the government to learn how they operate, and to understand their priorities, strategies, and tactics. In addition, the program has led the government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots aimed at the United States and other countries.
The basic structure of the Section 702 program appropriately focuses on targeting non-U.S. persons reasonably believed to be located abroad. Yet communications of, or concerning, U.S. persons can be collected under Section 702, and certain features of the program implicate privacy concerns. These features include the potential scope of U.S. person communications that are collected, the acquisition of “about” communications, and the use of queries that employ U.S. person identifiers.
The Board’s analysis of these features of the program leads to certain policy recommendations.
The government is presently unable to assess the scope of the incidental collection of U.S. person information under the program. For this reason, the Board recommends several measures that together may provide insight about the extent to which communications involving U.S. persons or people located in the United States are being acquired and utilized.
With regard to the NSA’s acquisition of “about” communications, the Board concludes that the practice is largely an inevitable byproduct of the government’s efforts to comprehensively acquire communications that are sent to or from its targets. Because of the manner in which the NSA conducts upstream collection, and the limits of its current technology, the NSA cannot completely eliminate “about” communications from its collection without also eliminating a significant portion of the “to/from” communications that it seeks. The Board includes a recommendation to better assess “about” collection and a recommendation to ensure that upstream collection as a whole does not unnecessarily collect domestic communications.
The Report also assesses the impact of queries using “United States person identifiers.” At the NSA, for example, these queries can be performed if they are deemed “reasonably likely to return foreign intelligence information.” No showing of suspicion that the U.S. person is engaged in any form of wrongdoing is required, but procedures are in place to prevent queries being conducted for improper purposes. The Board includes two recommendations to address the rules regarding U.S. person queries.
Overall, the Board finds that the protections contained in the Section 702 minimization procedures are reasonably designed and implemented to ward against the exploitation of information acquired under the program for illegitimate purposes. The Board has seen no trace of any such illegitimate activity associated with the program, or any attempt to intentionally circumvent legal limits. But the applicable rules potentially allow a great deal of private information about U.S. persons to be acquired by the government. The Board therefore offers a series of policy recommendations to ensure that the program appropriately balances national security with privacy and civil liberties.
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