What this licenses are the issuance of 'upstream collection' orders, permitting NSA to work with telcos/telecoms/ and Internet service providers to copy, scan and filter Internet and phone traffic coming from their physical infrastructure (an expanded definition of target). It also permits PRISM collection orders under Section 702 - directed at specific companies that compel the disclosure of the content of communications held by that company, with that magical 51% targeting threshold that it is foreign. In both instances, even if the communications are from or to an innocent American (a US Person) the communications are copied and stored in a searchable database (hence, once again, the seize first, search later collection mindset) and by those in the government the NSA authorizes the sharing of this data.
This is a general warrant equivalent and violates the dreaded 'writs of assistance' that were used against the colonists before the American Revolution and a huge reason why the colonists broke with King George III and led to the American Revolution.
So now the government can intentionally search for this information even though it's illegal under Section 702's "reverse targeting" prohibition against searching at the time of actual collection. But if not intentional, the magical search can begin. In addition, the government can use US Person identifiers to search the raw, un-minimized data. This means that minimization never actually takes place for those same US Persons!
We do not know the specific criteria by which the government decides which Americans are subject to these warrantless searches. However, the former NSA General Counsel Raj De did let slip (inadvertently?!) a previously undisclosed fact that when the government searches its pool of metadata for particular US Person information, there is no requirement that the government needs "reasonable articulable suspicion" of terrorist or criminal activity before searching the actual content of communications acquired under Section 702. In fact, it seems the only justification for the purpose of this kind of after the seizure search is merely the acquisition of foreign intelligence information.
Let's go back to the 51% 'foreignness' standard -- or as John Oliver once said it's "a coin flip plus 1 percent." It appears that NSA intentionally designed Section 702 so that it will regularly acquire information it is not expressly allowed to obtain! It means that NSA is accessing or seizing an enormous amount of electronic communications information it is simply not allowed to even possess under the very broadly defined plain text authorities of Section 702.
Another fundamental problem with Section 702 is that it authorizes targeting and monitoring of average citizens of other countries for reasons that are not necessarily related to the security of the United States. Targets are defined as non-US persons, and that means the entire set of their communications (wherever they originate and transit) are fair game.
This blatant disregard for other people's privacy is by design. Not only does it violate international human rights principles but it also impacts American business interests and foreign policy. And remember that safeguards under the traditional pre-9/11 FISA, limited US Person targets in relation to foreign powers or agents of foreign powers. And yet the government continues to hide the fact that Americans' communications are swept up in Section 702 under this 'about' the foreign target collection.
Back door searches should require at least a warrant. Outside of Section 702, the government would not have access to this information concerning Americans without complying with the express requirements of a 4th Amendment standard warrant, and it avoids those protections to simply engage in wholesale dragnet surveillance under the blanket of national security intelligence purposes opening up a huge door for parallel construction (and reconstruction) - the use of the collected data for other purposes to include law enforcement -- another back door.
Minimization should at least meet the standard of the 4th Amendment compliant traditional FISA. So now the invocation of collecting for national security and intelligence purposes takes primacy over rights, minimization or protection of privacy? This is no limitation whatsoever. The plain text laws compliant with the 4th Amendment already require that NSA must have a foreign intelligence purpose at the time it collects the communications. Yet under Section 702, that hurdle is now pre-emptively cleared before the search ever takes place! More fundamentally, if a foreign intelligence purpose could justify monitoring Americans' communications without any individualized or particularized court order, there would be no need for targeting or minimization requirements under Section 702!
Let's be clear here. If the government wants to obtain foreign intelligence information about an American target, it cannot do so through programmatic mass surveillance, back dooring Section 702 and the FISA-AA, and in the process creating a staged kabuki dance that simply shrouds the surveillance in secrecy, and makes the exercise of adhering to the protection of the rights of citizens a decidedly hollow and one-sided privacide shell game that provides no protection or privacy under any of the shells.
We have now arrived at a very consequential fork in the road of the US Constitutional Republic where the government can sift through vast quantities of citizen and US Person electronic communications at will with little or no restraint - not withstanding yet other surveillance 'authorities' to 'collect' like National Security Letters, Administrative subpoenas, Executive Order 12333 and the then secret post 9/11 unitary interpretation that the executive has commander-in-chief powers in times of war -- even when war is undeclared and of indeterminate duration.
Maybe we are all just foreigners now and just the unwitting and un-consenting objects of this obsessive quest to collect it all in order to know it all, subject to the golden age of surveillance against us all?
The Senate vote to pass Section 702 and the FISA Reauthorization is upon us. If you cherish privacy and don't want Congress to hand the executive the power to continue wielding the sword of national security protected warrant-free surveillance, the pervasive monitoring of one-end domestic communications (including wholly domestic comms), what about searches, still secret unreviewable 'law', unreviewable justifications and back door loopholes (including Tor and VPN -- thank Marcy Wheeler of @emptywheel for this analysis), with secret technical assistance orders to bypass encryption, giving criminals more rights than suspicion-less people plus enabling the equivalent of pre-crime data fishing and trawling expeditions, I strongly urge you to stand up now and call 202-224-3121 and urge Senators to vote NO on this reauthorization bill, even at this late hour.
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