NSA halts Section 702 'upstream' collection

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 on April 28.

The Foreign Intelligence Surveillance Court has to certify each year that the NSA is in compliance with Section 702 provisions. In a recertification application, the NSA reported to Congress and the FISC multiple “not willful” compliance incidents “related to queries involving U.S. person information in 702 ‘upstream’ internet collection.”

That led to NSA conducting a review of “mission needs, current technological constraints, United States person privacy interests, and certain difficulties in implementation.”

During that time, the FISC issued extensions “as NSA worked to fix the problems before the government submitted a new application for continued Section 702 certification. The FISC recently approved the changes after an extensive review.”

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.

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.

Sen. Ron Wyden (D-Ore.) has long accused the government of using 702 as an end run around warrant requirements to collect the communications of Americans, and he has been calling on the NSA to release data on the number of Americans who have had their communications “incidentally collected.”

“This transparency should be commended,” Wyden said after the NSA announcement. “To permanently protect Americans' rights, I intend to introduce legislation banning this kind of collection in the future.”

Rep. Adam Schiff (D-Ca.), the ranking member of the House Intelligence Committee, called 702 a vital collection tool and commended the NSA for self-reporting the issues and discontinuing “about” collection.

“I will continue to expect strict compliance with the FISA Court orders and will push for Section 702's reauthorization along with any additional reforms needed to further strengthen and institutionalize protections for privacy and transparency,” he said.

“This development represents the due diligence and extensive review applied across the United States Government pertaining to the Section 702 collection activities,” said Sen. Mark Warner (D-Va.), the ranking member of the Senate Intelligence Committee. 

“I believe we can now look forward to Congress and, in particular, the Senate Intelligence Committee…quickly turning to the consideration and debate of this critical authority prior to its expiration set for December 31, 2017,” he added.