The National Security Agency on Thursday released its first full transparency report, the first official revelation of its activity since ordered to do so by the president.
Posted on the NSA’s official Tumblr page, the report details the total number of orders for 2013, broken out by national security letters, Foreign Intelligence Surveillance Act orders and government requests for business records.
The report states that there have been 38,812 targets of national security letters, 1,767 FISA orders, and 423 targets of FISA business records requests, consistent with the relatively low numbers offered by the administration. In one notable section, a single section 702 order reached nearly 90,000 targets, presumably through the XKeyscore program, which targets emails and online chats, according to the Verge.
“In June 2013, President Obama directed the Intelligence Community to declassify and make public as much information as possible about certain sensitive U.S. Government surveillance programs while protecting sensitive classified intelligence and national security information,” the report states. “Over the past year, the Director of National Intelligence has declassified and authorized the public release of thousands of pages of documents relating to the use of critical national security authorities … accordingly, the DNI has declassified and directed the release of the following information for calendar year 2013.”
If these numbers seem low, that might make sense based on the clarification the agency offers on what a “target” means:
Within the Intelligence Community, the term “target” has multiple meanings. For example, “target” could be an individual person, a group, or an organization composed of multiple individuals or a foreign power that possesses or is likely to communicate foreign intelligence information that the U.S. government is authorized to acquire by the above-referenced laws.
National security letters are an administrative subpoena issued by the FBI in authorized national security investigations “to protect against international terrorism or clandestine intelligence activities.” The Stored Communications Act, Fair Credit Reporting Act, and Right to Financial Privacy Act authorize the bureau to seek such information that is “relevant” to an authorized national security investigation.
Although the government may have legal authority to conduct the “relevant” intelligence collection against multiple communications facilities used by the target, the user of the facilities – the “target” – is only counted once in the above figures.
The report’s own admissions of difficulty in narrowing down specific numbers of “targets” will likely raise questions among the privacy community.
“We are reporting the annual number of requests rather than “targets” for multiple reasons. First, the FBI’s systems are configured to comply with Congressional reporting requirements, which do not require the FBI to track the number of individuals or organizations that are the subject of an [national security letter],” the report states. “Even if the FBI systems were configured differently, it would still be difficult to identify the number of specific individuals or organizations that are the subjects of NSLs.”
But the NSA’s transparent revelation of such standards likely won’t appease ACLU activists, who told TheBlaze that the low threshold for “relevance” to a case allows for far too much room to interpretation.
“One way to think about it is how [the Foreign Intelligence Surveillance Court] has interpreted relevance under section 215, which the government is the same standard that governs ordinary subpoenas and national security team subpoenas like NSLs,” ACLU attorney Brett Max Kaufman said. “FISC interpreted ‘relevance’ to include every phone record in the United States.”
He said the ACLU believes relevance should be a more narrow standard, and should require a real connection to an ongoing or particular investigation.
Kaufman also pointed out the national security letters used as authorization for these investigations are not reviewed by a judge before they are issued and complied with. And 19,000 were issued last year under this ‘relevance’ standard.
“On top of that, they are accompanied by gag orders,” Kaufman said. “Anyone who has received one is in a difficult position … because they are put in the position where they are not allowed to tell anyone, and some even believe they can’t even tell their lawyer.”
“National security letters, on a standard as broadly as interpreted by the government as ‘relevance,’ and without any kind of judicial approval — all accompanied by a gag order — are an expansive and dangerous authority,” he said.
(H/T: The Verge)
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