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Manager’s Amendment Puts Back Door Searches Back In USA Freedom Act

Yesterday, the stagnant USA Freedom Act started to move through the U.S. House of Representatives, starting with a Manager’s Amendment to the bill.

According to its drafters, one of the USA Freedom goals was to prohibit “back door searches”. The term describes the practice of using selection terms connected to U.S. persons to search through repositories of data collected from targeting foreigners under section 702 of the FISA Amendments Act.

By my read, the Manager’s Amendment allows back door searches to continue. (HT to Marcy Wheeler for raising the issue.)

The original statute prohibited targeting U.S. persons, but once data was in NSA coffers, did not contain any prohibition on back door searches. The Foreign Intelligence Surveillance Court specifically allowed such searches so long as the queries were “designed to yield foreign intelligence information”. [See Oct. 3 2011 John Bates opinion, p. 23.]

The original USA Freedom language sought to prohibit such searches with this language:

(2) CLARIFICATION ON PROHIBITION ON SEARCHING OF COLLECTIONS OF COMMUNICATIONS OF UNITED STATES PERSONS.—

(A) IN GENERAL.—Except as provided in subparagraph (B), no officer or employee of the United States may conduct a search of a collection of communications acquired under this section in an effort to find communications of a particular United States person (other than a corporation).

(B) CONCURRENT AUTHORIZATION AND EXCEPTION FOR EMERGENCY SITUATIONS.—

Subparagraph (A) shall not apply to a search for communications related to a particular United States person if—

(i) such United States person is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105, 304, 703, 704, or 705, or title 18, United States Code, for the effective period of that order;

(ii) the entity carrying out the search has a reasonable belief that the life or safety of such United States person is threatened and the information is sought for the purpose of assisting that person; or

(iii) such United States person has consented to the search.

The Manager’s Amendment does not contain this language. Rather, it says:

The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that

(A)          meet the definition of minimization procedures under section 1801 (h) of this title or section 1821 (4) of this title, as appropriate, for acquisitions authorized under subsection (a) ; and

(B)      consistent with such definition, minimize the acquisition, and prohibit the retention and dissemination, of any communication as to which the sender and all intended recipients are determined to be located in the United States and prohibit the use of any discrete, non-target communication that is determined to be to or from a United States person or a person who appears to be located in the United States, except to protect against an immediate threat to human life.

Does this language prohibit searches for U.S. person information? I think no.

First, there is no prohibition on such searches. By deleting the original language, and against the backdrop of the Oct. 3, 2011 FISC decision, it would allow searches in an effort to find communications of a particular United States person.

Second, the minimization mandate contains a loophole allowing the use of the fruits of back door searches for foreign intelligence and law enforcement purposes. The Manager’s Amendment language prohibits the “use” of discrete communications of U.S. persons with non-targets. However, there are two limitations (1) “consistent with such definition” and (2) except to protect against an immediate threat to human life. Assuming we know what (2) means, let’s take a look at (1).

“Such definition” refers to the definitions of minimization procedures under section 1801 (h) or section 1821 (4) as mentioned in subsection (A). Under both provisions minimization procedures are generally defined as procedures to “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information (FII)”. Minimization procedures also must allow for the retention and dissemination of information that is evidence of a crime for law enforcement purposes.

So any limitations on use of U.S. person data would be subject to the government’s foreign intelligence and law enforcement needs. This is already the case under current minimization procedures. Remember that Judge Bates found that the approximately 56,000 purely domestic messages obtained in 2011 by NSA via upstream collection of “about” messages did not require special minimization procedures and could be retained and used. That’s because they were collected for containing information “about” a foreign intelligence target.

[I]n the language of FISA’s definition of minimization procedures, the acquisition of wholly domestic communications about targeted selectors will generally be ‘consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information’. Oct. 3, 2011 Bates opinion, page 57, ftnt 53

So, this provision does nothing to stop back door searches or to prevent the information from being used for either foreign intelligence or law enforcement purposes. In other words, it appears to do NOTHING. Other than put some very confusing language there to give people false hope that something is being done about back door searches.

If anyone disagrees or has another theory about why this language is in the Manager’s Amendment, I’d love to hear it.

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About the Author

Surveillance and Cybersecurity Counsel at the ACLU's Project on Speech, Privacy and Technology Follow her on Twitter (@granick).