The more you know
by digby
… about spying on Americans, the more you realize that they can pretty much do it at will — and are.
In this piece, Law professor Margo Schlanger examines Executive Order 12333:
[T]he surveillance I’m about to describe, which proceeds under Executive Order 12333, rather than FISA, is far more worrisome than the programs under Section 215 of the Patriot Act and Section 702 of the FISA Amendments Act that have received so much recent attention. (For example, here and here for Section 215, here and here for Section 702, and here and here for more general info.) This is content surveillance that applies to both wholly and partially domestic communications of US citizens and residents. The access and analysis rules are very, very loose. There is no judicial supervision of any kind, and Congress does almost no 12333 oversight. (See here for more on how FISA and 12333 differ).
Non-selective “vacuum cleaner” SIGINT collection — mass collection of communications unlimited by particular communicants or subjects — is outside FISA’s ambit, so long as the collection is either done abroad (for wire communications like those carried on landlines or cables) or involves at least one foreign communicant (for wireless communications). This kind of collection can and does include wholly and partially domestic communications of US citizens and residents.
Once collected, analysis of these communications is also outside FISA’s ambit. Instead, the use of SIGINT that was collected vacuum-cleaner-style is limited by PPD-28 to six topics: detecting and countering espionage, terrorism, weapons of mass destruction, cybersecurity threats, threats to the armed services, and transnational crime.This kind of entirely unlimited SIGINT collection is not favored, however: According to its new policies implementing PPD-28, when “practicable,” the NSA searches for communications containing specific terms that narrow its collection to topics like “nuclear proliferation, oil sales, [and] economics.” Economics!
Again, so long as the collection is either done abroad (for wire communications) or involves at least one foreign communicant (for wireless communications), FISA does not regulate term searching based on subject matter, rather than the identity of a communicant. And because this approach uses a “discriminant,” it is not deemed “bulk” collection for purposes of PPD-28. It may thereafter be searched by the NSA for any and all foreign intelligence purposes, not just the six topics identified in (2), above.
When the NSA uses subject matter searching — whether to acquire data or to search raw SIGINT acquired in bulk or otherwise — there is a mild tailoring requirement. Specifically, policy requires use of only selection terms that are reasonably likely to flag communications that include foreign intelligence topics (like oil sales). Policy also requires the NSA to try to develop selection techniques that “defeat, to the greatest extent practicable under the circumstances” interception of non-foreign intelligence communications. While we don’t know what “practicable” means in this context, term searching is very familiar; just think of using Google or Westlaw. It seems inevitable that this approach exposes an extraordinary amount of innocent Americans’ communications to the eyes of intelligence analysts.
So, when the President says that foreigners will get the same protections against surveillance as US citizens and residents, keep in mind that those protections leave a lot out.
Marcy Wheeler has written tons about this. You can read her stuff here. In fact, EO 12333 is one of the issues about which Edward Snowden insists he queried the NSA’s legal department.
Everyone wants to believe that the legal basis for all this collection of data is FISA, with its “oversight” and kangaroo court. But the NSA doesn’t just rely on FISA — executive orders govern a lot of what they do and the powers are sweeping and not subject to oversight.
Just remember. If you aren’t writing about economics, you have nothing to worry about …
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