Today the Guardian reported that a change to section 702 of the FISA Amendments Act (FAA) appears set to allow for the searching of communication information of United States citizens. Previously, section 702 was restricted to communications of foreign individuals who were located outside of the United States at the, to quote the Guardian, “point of collection.”
United States citizens were outside the scope of section 702 authorization. However, that appears now to be potentially changed.
An image published by the Guardian’s James Ball – it was leaked by Edward Snowden – states that a change has been enacted to section 702, that “the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data.”
In other words, the NSA now claims the authority to search databases for the communication data of United States citizens.
However, there is a firm caveat to the above: “[A]nalysts may NOT/NOT implement any USP [United States Persons] queries until an effective oversight process has been developed by the NSA and agreed on by DOJ/ODNI.” That’s somewhat encouraging, as it demonstrates a certain moral imperative at the NSA to build oversight into its activities, even if it appears to be able to set its own rules.
What is discouraging is that the NSA appears to be reinterpreting section 702 far from its earlier mission. This is a key change, and one that should be aggressively pushed upon for distinction. And if the above “oversight” process has been put into place, we need to understand its strengths, and weaknesses.
There is a current school of thought that, sans proven abuse of collection and search operations at the NSA, we are not proving enough; that until we have documented cases of misuse, we are overreacting. It’s my view that mere existence of programs and authorities that could quickly allow for the abrogation of rights should be opposed simply given their potential. Therefore, in my view, we do not need to wait for the gun to smoke. The firearm is sufficient. Now you know my bias.
According to Ball, Sen. Wyden told the Guardian that section 702 allows the NSA “warrantless searches for the phone calls or emails of law-abiding Americans.” If that is not correct the onus is now on the NSA to step up and explain itself.
Top Image Credit: Robert Scoble