The Obama administration for more than two years permitted the National Security Agency to continue collecting vast amounts of records detailing the email and internet usage of Americans, according to secret documents obtained by the Guardian.The report answers some questions but raises many more. First some of the answers:
The documents indicate that under the program, launched in 2001, a federal judge sitting on the secret surveillance panel called the Fisa court would approve a bulk collection order for internet metadata "every 90 days". A senior administration official confirmed the program, stating that it ended in 2011.
The collection of these records began under the Bush administration's wide-ranging warrantless surveillance program, collectively known by the NSA codename Stellar Wind.
the [NSA] began "collection of bulk internet metadata" involving "communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States".Sounds like a Section 702 of FISA program, and reflects all the deficiencies in what appears to have been accepted as legal under that program—namely the lack of a requirement of particularized warrants. It reflects the problematic dragnet approach of how Section 702 has been used. In addition it appears to reflect the 51 percent probability formula for determination of whether a communication comes from a "U.S. person." Of course, under the Bush Administration, the Section 702 fig leaf did not even exist, which leads us to the next answer:
The DoJ quickly convinced the Fisa court to authorize ongoing bulk collection of email metadata records. On 14 July 2004, barely two months after Bush stopped the collection, Fisa court chief judge Collen Kollar-Kotelly legally blessed it under a new order – the first time the surveillance court exercised its authority over a two-and-a-half-year-old surveillance program.On what basis did the Foreign Intelligence Surveillance court (FISC) issue that order? Remember, Section 702 did not even exist in 2004. For determining whether the FISA court is a rubber stamp, understanding the basis of this order would be important. Another strong reason for more transparency from the FISA court.
For some of the questions raised follow me to the other side.
The essential questions for me are the following:
(1) What was the impetus for ending the program in 2011? The Guardian reports:
"The internet metadata collection program authorized by the Fisa court was discontinued in 2011 for operational and resource reasons and has not been restarted," Shawn Turner, the Obama administration's director of communications for National Intelligence, said in a statement to the Guardian. "The program was discontinued by the executive branch as the result of an interagency review," Turner continued. He would not elaborate further."Operational and resource reasons" means what exactly? Was it connected to the reported 2011 FISA court opinion declaring some surveillance programs unlawful?
(2) Was the discontinued program replaced by any other programs? The Guardian reports:
[W]hile that specific program has ended, additional secret NSA documents seen by the Guardian show that some collection of Americans' online records continues today. In December 2012, for example, the NSA launched one new program allowing it to analyze communications with one end inside the US, leading to a doubling of the amount of data passing through its filters.If true, then the following questions arise:
(3) Were those programs approved by the FISA court? Under what legal authority?
In the end, a lot of questions can be answered by more transparency regarding the FISA court approval process, both to know what has been submitted for approval, what has not, what has been approved and on what grounds.
While much needs to be learned before definitive judgments can be reached, a good starting point would be (1) to know what the FISA court knows and does not know, (2) what is has approved and not approved, and (3) on what basis.