Emergency provision still enables spy agencies to collect specific records without court approval
Federal spy agencies no long have the legal authority to gather bulk communications records. Instead, the National Security Agency will have to obtain a court order to obtain specific data, as outlined by President Barack Obama in March 2014.
Obama said the data should remain with communications companies, with a legal mechanism in place that would allow the government to obtain data pursuant to individual orders from the Foreign Intelligence Surveillance Court — to ensure that the data collection is “appropriately focused and targeted,” according to top spy officials.
That approach was subsequently codified in the FREEDOM Act, passed by Congress in 2015. An emergency provision enables intelligence agencies to access some data under authorization by the Attorney General of the U.S., with follow-up approval from the Foreign Intelligence Surveillance Court.
Here’s what the Office of the Director of National Intelligence posted on its Tumblr blog:
“On November 29, the transition period ends. Beginning Sunday, November 29, the government is prohibited from collecting telephone metadata records in bulk under Section 215, including of both U.S. and non-U.S. persons. And, while under the prior program NSA collected metadata in bulk and sought court approval for individual queries, the USA FREEDOM Act requires that the government must now base any application for telephone metadata records under FISA on a “specific selection term”—a term that specifically identifies a person, account, address, or personal device in a way that limits the scope of information sought to the greatest extent reasonably practicable. This further ensures that collection of information for intelligence purposes is appropriately focused and targeted, and is limited to information that telephone service providers have historically used for their internal billing and operational needs. Moreover, under the Act, the Government will report annually to Congress and to the public, among other things, the total number or orders issued under this authority and the number of targets of such orders.”
The NSA will preserved the bulk data it has already collected pending resolution of civil litigation regarding the program. “The telephony metadata … will not be used or accessed for any other purpose, and NSA will destroy the Section 215 bulk telephony metadata as soon as possible upon expiration of its litigation preservation obligations,” the agency said.
The agency also posted a bullet-point FAQ:
How does the new process required by the USA FREEDOM Act differ from the previous program?
- Effective November 29, the United States Government will no longer be authorized to collect bulk telephony metadata under Section 215.
- Under the new process, the call detail records will be held and queried by the telecommunications service providers, not by the government. That means NSA will send specific telephone numbers or other identifying “selectors” related to international terrorism to the providers and receive results from the providers’ queries of their business records.
- Absent an emergency situation, the government may obtain the records only pursuant to individual orders from the FISC approving the use of specific selectors for queries based on a link to international terrorism.
- In an emergency situation, the Attorney General, or her designee, approves the use of specific selectors in the first instance, and then NSA subsequently submits them to the FISC for final approval. If an emergency request is appropriate and all necessary statutory determinations have been made, the Attorney General or her designee will generally be able to approve it within hours or less of the initial request.How does the new process work?
- NSA analysts will identify specific selectors (such as a phone number or handset identifier) used by individuals associated with international terrorism. They will document evidence of this association and submit it to the Department of Justice for filing with the FISC (or to the Attorney General, Deputy Attorney General, or Assistant Attorney General for National Security, in emergency situations) for approval of the specific selection terms based on the legal standard of reasonable, articulable suspicion – the standard mandated by the USA FREEDOM Act.
- Only the FISC (or the Attorney General, Deputy Attorney General, or Assistant Attorney General for National Security, in an emergency) can approve the request.
- If approval is received, NSA will generate query requests and send them to the providers. The legal framework permits providers to return call detail records which are either one or two “hops” away from a FISC-approved, terrorist-associated selection term. First hop selection terms (e.g., those that are in direct contact with a FISC-approved selection term) may be obtained from providers as well as from information identified independently by the government. These first hop selection terms may then be sent by NSA as query requests to the providers to obtain second hop records.
- The court-approved selectors may be used to query the providers’ call detail records over a limited period of time (up to 180 days) without returning to the FISC for approval.