Saturday, August 10, 2013 12:31:11 AM
Q&A: What Obama’s Surveillance Changes Mean
By Jennifer Valentino-DeVries August 9, 2013, 6:01 PM Comments (4)
Associated Press
President Barack Obama .. http://topics.wsj.com/person/O/barack,-obama/4328 .. gestures
during a news conference in the East Room of the White House in Washington, Friday, Aug. 9, 2013.
President Barack Obama announced plans Friday .. http://online.wsj.com/article/SB10001424127887324522504579002653564348842.html? .. to overhaul a secret national security court and pledged to take other steps to provide more information on secret programs. Here’s a Q&A on the changes:
What are the main changes President Obama is proposing after disclosures
about surveillance programs by the National Security Agency?
Obama offered four main proposals:
- Revamping the secret Federal Intelligence Surveillance Court, or FISC, which approves the NSA’s surveillance efforts;
- Revamping the section of the Patriot Act that allows for the bulk collection of telephone “metadata,” for example numbers dialed and the duration of calls;
- Disclosing more information about NSA programs;
- Naming a task force to review surveillance efforts.
Which of these is most significant?
The proposal to reform the FISC, also called the FISA court, is the most ambitious. This secret court, which is made up of 11 federal judges appointed by the Chief Justice of the Supreme Court, hears requests to order surveillance in national security cases. Because these cases are so sensitive, proceedings are secret and the court’s opinions are almost never released.
In particular, Obama is suggesting the court system have a privacy advocate to counter government requests for surveillance. In the current court, the federal government makes an application to the judges and they decide whether to approve it. This is unlike the typical criminal legal system, in which defendants eventually have the opportunity to challenge government procedures.
A privacy advocate could assuage concerns of civil liberties advocates, but the court would still be subject to stringent secrecy requirements because of the subject of the cases it handles. Advocates of further change in the court might also want reforms to include more releases of court orders, as well as possible adjustments to the way judges are nominated.
How might the Patriot Act be changed?
Obama did not specify how the Patriot Act might be overhauled, other than to explain that he was seeking to increase oversight and put more “constraints” on the provision in question.
The law being discussed is called the “business records” section and allows the government to obtain records as long as it’s reasonable to believe they are “relevant” to an authorized national security investigation.
The disclosure of documents by former NSA contractor Edward Snowden showed how this provision was being used to justify the ongoing bulk collection of phone record metadata from millions of Americans. The court approved of this collection only after requiring limits on when the database could be accessed, but those limits have not been officially put into law.
Some legislators have said that they did not consider this large amount of data to meet the “relevant” standard. Several have said they do not believe that the Patriot Act in fact allowed such collection, even with the court’s limitations. Still other lawmakers have opposed any changes to the program, saying it is key to protecting Americans from national security threats.
The Obama administration has defended the data-collection program while also calling for more transparency. So any changes could aim to keep the program in place, while providing a more official system of limitations on access to the data.
What would the task force do?
This group, which has yet to be named, will produce a report that aims to balance “security, privacy and foreign policy concerns” as they relate to U.S. surveillance efforts, a U.S. official said.
Other than that, the group’s role appears limited. Another group, called the Privacy and Civil Liberties Oversight Board, already has a role as a watchdog agency for federal surveillance. That board, which was created by Congress in 2004, has had a difficult history and had its first meeting as an independent agency only this June.
What kind of information would be disclosed about the NSA?
Earlier today, the administration released a paper outlining the legal reasoning behind its collection of large amounts of telephone metadata. Officials said they would give more information about the NSA’s legal authority and about the controls that limit what the agency can do with the data it collects. In addition, the NSA has proposed creating a full-time civil liberties and privacy officer and is launching a website to give people more information about its programs. Although this is more information than the secretive agency usually provides, it remains unclear how many additional details about programs will be disclosed.
What did the disclosure of the government’s legal reasoning in the Patriot Act case show?
The government outlined several reasons behind the surveillance court’s approval of bulk phone data under the Patriot Act. Most of the information had been discussed recently in congressional hearings and elsewhere, but the document handed out today is the first complete report on the legal reasoning.
Most important is the assertion that for broad investigations into terrorism this data is indeed “relevant,” as the law calls for. Specifically, the government said there is reason to believe conducting searches on this database will produce information for terrorism investigations, and that the NSA can only perform the necessary analysis if it collects such a large volume of data.
The government also points out that preventive terrorism investigations are much broader than investigations into crimes that already have been committed. This means they require more information and access to data in order to succeed. Also important to the government’s argument is that the FISA court put restrictions on the handling of data collected by the program. For example, there must be “reasonable, articulable suspicion” in order to query the database using an “identifier,” such as a telephone number.
Last year, 300 identifiers met this standard and were used to query the database. The information gathered expands rapidly from there, however, because analysts can gather the numbers from three “hops” of contacts. In other words, the numbers called by the original phone, all the numbers those second set of phones called, and all the numbers the third set of phones called as well. Still, the report says, this represents a “tiny fraction of the total volume” of records.
Finally, the administration points out that it gave information to Congress about the program, and legislators repeatedly reauthorized the part of the Patriot Act that allows it. In fact, Congress declined to make limit the law in a way that would have stopped the program.
http://blogs.wsj.com/washwire/2013/08/09/qa-what-obamas-surveillance-changes-mean/
======
5 Things To Know About The Legal Reasoning For Surveillance
Eyder Peralta andScott Neuman August 09, 2013 5:57 PM
The National Security Agency headquarters at Fort Meade, Md.
Saul Loeb/Getty Images
After Obama proposed reforms .. http://www.npr.org/blogs/thetwo-way/2013/08/09/210539942/live-blog-president-obamas-press-conference .. to some surveillance programs run by the NSA, the Justice Department issued a long-awaited white paper .. http://s3.documentcloud.org/documents/750210/administration-white-paper-section-215.pdf .. (pdf) on the legal reasoning for the bulk collection of telephone records.
Much of it centers around Section 215 of the Patriot Act .. http://www.law.cornell.edu/uscode/text/50/1861 , which authorizes the warrantless collection of metadata on all the calls that come in and out of the United States.
The white paper is 23 pages long and full of legalese, but it's important. We've gone through the document and found five highlights you should know about.
— On Relevance:
Section 215 of the USA Patriot Act .. http://www.law.cornell.edu/uscode/text/50/1861 .. allows the government to collect business records if they are "relevant to an authorized investigation"
So you might ask, yourself, how is it that the government can collect metadata about phone calls in bulk? Can records of all calls made by Verizon customers, for example, be relevant to an "authorized investigation."
The Obama administration argues that in the legal world the term "relevant" is more broad than its dictionary definition.
------
"It is well-settled in the context of other forms of legal process for the production of documents that a document is 'relevant' to a particular subject matter not only where it directly bears on that subject matter, but also where it is reasonable to believe that it could lead to other information that directly bears on that subject matter. In civil discovery, for example, the Supreme Court has construed the phrase 'relevant to the subject matter involved in the pending action' 'broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.' Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)"
-----
The government continues:
-----
"In light of that basic understanding of relevance, courts have held that the relevance standard permits requests for the production of entire repositories of records, even when any particular record is unlikely to directly bear on the matter being investigated, because searching the entire repository is the only feasible means to locate the critical documents."
-----
— It's What Congress Intended:
The government argues that Congress passed the Patriot Act with that broad definition of "relevant" in mind.
That is clear, the government argues, because they have twice reauthorized the section, knowing how it was being implemented.
"When Congress reenacts a statute without change, it is presumed to have adopted the administrative or judicial interpretation of the statute if it is aware of the interpretation," the administration writes in the white paper.
— The Data Is Not Fully Searchable:
As we've explained before .. http://www.npr.org/blogs/thetwo-way/2013/06/15/191619038/based-on-what-we-know-is-the-nsa-verizon-request-legal , the government is not allowed to look at all the data it collects. It's enacted "minimization procedures," which sometimes force analysts to seek further permission from a secret court to look at certain data.
One of the interesting minimization procedures in the white paper is something called "hops."
The NSA can obtain three levels of contacts, known as "hops", in addition to the targeted telephone number. The first "hop" is the set of telephone numbers in direct contact with the original number, but two more levels can be looked at. The second "hop" is all numbers in direct contact with the first "hop" and the third "hop" consists of all numbers in contact with the second "hop".
Because it's a geometric progression, if the first number and each one thereafter is in contact with three others, a total of 40 numbers could come under scrutiny as part of a single query.
"Following the trail in this fashion allows focused inquiries on numbers of interest, thus potentially revealing a contact at the second or third 'hop' from the seed telephone number," the paper says.
"Even so, under this process, only a tiny fraction of the bulk telephony metadata records stored at NSA are authorized to be seen by an NSA intelligence analyst, and only under carefully controlled circumstances."
— Section 215, Is Not Boundless:
Some records are different, the government says, so the same standards do not apply to other business records.
They explain:
-----
"For example, the Government's ability to analyze telephony metadata, including through the techniques discussed above, to discover connections between individuals fundamentally distinguishes such data from medical records or library records. Although an identified suspect's medical history might be relevant to an investigation of that individual, searching an aggregate database of medical records—which do not interconnect to one another—would not typically enable the Government to identify otherwise unknown relationships among individuals and organizations and therefore to ascertain information about terrorist networks."
-----
— Plus, Metadata Isn't Protected By The Fourth:
One of the last arguments the government makes is the metadata collected — time, phone numbers, duration — isn't protected by the Fourth Amendment.
Citing Smith v. Maryland .. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=442&invol=735 , the government says the "Supreme Court precedent makes clear that participants in telephone calls lack any reasonable expectation of privacy under the Fourth Amendment in the metadata records generated by their telephone calls and held by telecommunications service providers."
http://www.npr.org/blogs/thetwo-way/2013/08/09/210590409/5-things-to-know-about-the-legal-reasoning-for-surveillance
By Jennifer Valentino-DeVries August 9, 2013, 6:01 PM Comments (4)
Associated Press
President Barack Obama .. http://topics.wsj.com/person/O/barack,-obama/4328 .. gestures
during a news conference in the East Room of the White House in Washington, Friday, Aug. 9, 2013.
President Barack Obama announced plans Friday .. http://online.wsj.com/article/SB10001424127887324522504579002653564348842.html? .. to overhaul a secret national security court and pledged to take other steps to provide more information on secret programs. Here’s a Q&A on the changes:
What are the main changes President Obama is proposing after disclosures
about surveillance programs by the National Security Agency?
Obama offered four main proposals:
- Revamping the secret Federal Intelligence Surveillance Court, or FISC, which approves the NSA’s surveillance efforts;
- Revamping the section of the Patriot Act that allows for the bulk collection of telephone “metadata,” for example numbers dialed and the duration of calls;
- Disclosing more information about NSA programs;
- Naming a task force to review surveillance efforts.
Which of these is most significant?
The proposal to reform the FISC, also called the FISA court, is the most ambitious. This secret court, which is made up of 11 federal judges appointed by the Chief Justice of the Supreme Court, hears requests to order surveillance in national security cases. Because these cases are so sensitive, proceedings are secret and the court’s opinions are almost never released.
In particular, Obama is suggesting the court system have a privacy advocate to counter government requests for surveillance. In the current court, the federal government makes an application to the judges and they decide whether to approve it. This is unlike the typical criminal legal system, in which defendants eventually have the opportunity to challenge government procedures.
A privacy advocate could assuage concerns of civil liberties advocates, but the court would still be subject to stringent secrecy requirements because of the subject of the cases it handles. Advocates of further change in the court might also want reforms to include more releases of court orders, as well as possible adjustments to the way judges are nominated.
How might the Patriot Act be changed?
Obama did not specify how the Patriot Act might be overhauled, other than to explain that he was seeking to increase oversight and put more “constraints” on the provision in question.
The law being discussed is called the “business records” section and allows the government to obtain records as long as it’s reasonable to believe they are “relevant” to an authorized national security investigation.
The disclosure of documents by former NSA contractor Edward Snowden showed how this provision was being used to justify the ongoing bulk collection of phone record metadata from millions of Americans. The court approved of this collection only after requiring limits on when the database could be accessed, but those limits have not been officially put into law.
Some legislators have said that they did not consider this large amount of data to meet the “relevant” standard. Several have said they do not believe that the Patriot Act in fact allowed such collection, even with the court’s limitations. Still other lawmakers have opposed any changes to the program, saying it is key to protecting Americans from national security threats.
The Obama administration has defended the data-collection program while also calling for more transparency. So any changes could aim to keep the program in place, while providing a more official system of limitations on access to the data.
What would the task force do?
This group, which has yet to be named, will produce a report that aims to balance “security, privacy and foreign policy concerns” as they relate to U.S. surveillance efforts, a U.S. official said.
Other than that, the group’s role appears limited. Another group, called the Privacy and Civil Liberties Oversight Board, already has a role as a watchdog agency for federal surveillance. That board, which was created by Congress in 2004, has had a difficult history and had its first meeting as an independent agency only this June.
What kind of information would be disclosed about the NSA?
Earlier today, the administration released a paper outlining the legal reasoning behind its collection of large amounts of telephone metadata. Officials said they would give more information about the NSA’s legal authority and about the controls that limit what the agency can do with the data it collects. In addition, the NSA has proposed creating a full-time civil liberties and privacy officer and is launching a website to give people more information about its programs. Although this is more information than the secretive agency usually provides, it remains unclear how many additional details about programs will be disclosed.
What did the disclosure of the government’s legal reasoning in the Patriot Act case show?
The government outlined several reasons behind the surveillance court’s approval of bulk phone data under the Patriot Act. Most of the information had been discussed recently in congressional hearings and elsewhere, but the document handed out today is the first complete report on the legal reasoning.
Most important is the assertion that for broad investigations into terrorism this data is indeed “relevant,” as the law calls for. Specifically, the government said there is reason to believe conducting searches on this database will produce information for terrorism investigations, and that the NSA can only perform the necessary analysis if it collects such a large volume of data.
The government also points out that preventive terrorism investigations are much broader than investigations into crimes that already have been committed. This means they require more information and access to data in order to succeed. Also important to the government’s argument is that the FISA court put restrictions on the handling of data collected by the program. For example, there must be “reasonable, articulable suspicion” in order to query the database using an “identifier,” such as a telephone number.
Last year, 300 identifiers met this standard and were used to query the database. The information gathered expands rapidly from there, however, because analysts can gather the numbers from three “hops” of contacts. In other words, the numbers called by the original phone, all the numbers those second set of phones called, and all the numbers the third set of phones called as well. Still, the report says, this represents a “tiny fraction of the total volume” of records.
Finally, the administration points out that it gave information to Congress about the program, and legislators repeatedly reauthorized the part of the Patriot Act that allows it. In fact, Congress declined to make limit the law in a way that would have stopped the program.
http://blogs.wsj.com/washwire/2013/08/09/qa-what-obamas-surveillance-changes-mean/
======
5 Things To Know About The Legal Reasoning For Surveillance
Eyder Peralta andScott Neuman August 09, 2013 5:57 PM
The National Security Agency headquarters at Fort Meade, Md.
Saul Loeb/Getty Images
After Obama proposed reforms .. http://www.npr.org/blogs/thetwo-way/2013/08/09/210539942/live-blog-president-obamas-press-conference .. to some surveillance programs run by the NSA, the Justice Department issued a long-awaited white paper .. http://s3.documentcloud.org/documents/750210/administration-white-paper-section-215.pdf .. (pdf) on the legal reasoning for the bulk collection of telephone records.
Much of it centers around Section 215 of the Patriot Act .. http://www.law.cornell.edu/uscode/text/50/1861 , which authorizes the warrantless collection of metadata on all the calls that come in and out of the United States.
The white paper is 23 pages long and full of legalese, but it's important. We've gone through the document and found five highlights you should know about.
— On Relevance:
Section 215 of the USA Patriot Act .. http://www.law.cornell.edu/uscode/text/50/1861 .. allows the government to collect business records if they are "relevant to an authorized investigation"
So you might ask, yourself, how is it that the government can collect metadata about phone calls in bulk? Can records of all calls made by Verizon customers, for example, be relevant to an "authorized investigation."
The Obama administration argues that in the legal world the term "relevant" is more broad than its dictionary definition.
------
"It is well-settled in the context of other forms of legal process for the production of documents that a document is 'relevant' to a particular subject matter not only where it directly bears on that subject matter, but also where it is reasonable to believe that it could lead to other information that directly bears on that subject matter. In civil discovery, for example, the Supreme Court has construed the phrase 'relevant to the subject matter involved in the pending action' 'broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.' Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)"
-----
The government continues:
-----
"In light of that basic understanding of relevance, courts have held that the relevance standard permits requests for the production of entire repositories of records, even when any particular record is unlikely to directly bear on the matter being investigated, because searching the entire repository is the only feasible means to locate the critical documents."
-----
— It's What Congress Intended:
The government argues that Congress passed the Patriot Act with that broad definition of "relevant" in mind.
That is clear, the government argues, because they have twice reauthorized the section, knowing how it was being implemented.
"When Congress reenacts a statute without change, it is presumed to have adopted the administrative or judicial interpretation of the statute if it is aware of the interpretation," the administration writes in the white paper.
— The Data Is Not Fully Searchable:
As we've explained before .. http://www.npr.org/blogs/thetwo-way/2013/06/15/191619038/based-on-what-we-know-is-the-nsa-verizon-request-legal , the government is not allowed to look at all the data it collects. It's enacted "minimization procedures," which sometimes force analysts to seek further permission from a secret court to look at certain data.
One of the interesting minimization procedures in the white paper is something called "hops."
The NSA can obtain three levels of contacts, known as "hops", in addition to the targeted telephone number. The first "hop" is the set of telephone numbers in direct contact with the original number, but two more levels can be looked at. The second "hop" is all numbers in direct contact with the first "hop" and the third "hop" consists of all numbers in contact with the second "hop".
Because it's a geometric progression, if the first number and each one thereafter is in contact with three others, a total of 40 numbers could come under scrutiny as part of a single query.
"Following the trail in this fashion allows focused inquiries on numbers of interest, thus potentially revealing a contact at the second or third 'hop' from the seed telephone number," the paper says.
"Even so, under this process, only a tiny fraction of the bulk telephony metadata records stored at NSA are authorized to be seen by an NSA intelligence analyst, and only under carefully controlled circumstances."
— Section 215, Is Not Boundless:
Some records are different, the government says, so the same standards do not apply to other business records.
They explain:
-----
"For example, the Government's ability to analyze telephony metadata, including through the techniques discussed above, to discover connections between individuals fundamentally distinguishes such data from medical records or library records. Although an identified suspect's medical history might be relevant to an investigation of that individual, searching an aggregate database of medical records—which do not interconnect to one another—would not typically enable the Government to identify otherwise unknown relationships among individuals and organizations and therefore to ascertain information about terrorist networks."
-----
— Plus, Metadata Isn't Protected By The Fourth:
One of the last arguments the government makes is the metadata collected — time, phone numbers, duration — isn't protected by the Fourth Amendment.
Citing Smith v. Maryland .. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=442&invol=735 , the government says the "Supreme Court precedent makes clear that participants in telephone calls lack any reasonable expectation of privacy under the Fourth Amendment in the metadata records generated by their telephone calls and held by telecommunications service providers."
http://www.npr.org/blogs/thetwo-way/2013/08/09/210590409/5-things-to-know-about-the-legal-reasoning-for-surveillance
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