NSA Halts Controversial Spy Program
The program had been used to scoop up large numbers of digital communications, including those belonging to Americans, "about" targets of foreign surveillance.
The National Security Agency announced on Friday it will be halting one facet of a highly controversial intelligence program that allowed the spy agency to scoop up large quantities of electronic messages, including those of Americans to and from the United States.
Colloquially known as “about the target” collection, the program allowed the NSA to sift through emails and text messages leaving from and arriving in the United States mentioning information such as names, emails, and phone numbers associated with terrorist groups or foreign spies. A program long criticized by civil liberties advocates, such collection and searching authorities allowed the agency to identify individuals thought to have a connection to terrorist groups or foreign spy agencies.
The New York Times first reported the program’s halt earlier Friday.
NSA officials briefed congressional officials about the halt on Wednesday, saying the program had been shut down as a result of problems in complying with the court-ordered rules that govern many of the agency’s programs, according to sources familiar with the matter.
Annually, the intelligence community needs to secure court permission to continue its foreign intelligence collection without seeking individual warrants for each target. That permission was not granted in 2016, the sources said. The court granted a temporary extension, and the NSA has been working to adjust its procedures for querying its databases to “minimize” access to American data.
In 2011, the Foreign Intelligence Surveillance Court put in place rules meant to protect the communications of Americans swept up by the program — but those restrictions, including limiting the amount of time analysts could access the data, were cumbersome and didn’t prevent a large amount of user error, congressional officials told Foreign Policy.
According to the Times, the agency struggled to comply with those rules because of how information is transmitted on the internet. Telecommunications companies will frequently package a number of communications into packets to be sent across the fiber optic cables that crisscross the world and make up the backbone of the global internet. Agency computers would scan those packets, and when a targeted email or phone number was spotted, the computers would sweep up the entire packet.
In doing so, NSA computers could also sweep up messages belonging to Americans that were bundled in the same packet.
Analysts searching the database of communications collected under the program reportedly accessed such bundled messages in a way that did not comply with the 2011 rules and allowed inappropriate access to communications belonging to U.S. persons, according to the Times.
A congressional aide told Foreign Policy that NSA officials promptly informed Congress of the problem and are trying to correct it. Complying with the rules is a complicated challenge, the official said, and the intelligence community insists analysts didn’t break them intentionally.
“They’re moving at a pace I’ve never seen the intelligence community move before,” the official said, speaking on condition of anonymity to describe the agency’s operation. The new minimization procedures being developed by the NSA will likely be public by the end of May, the official said, citing a briefing of the ODNI’s timeline.
It’s unclear how the NSA will address the legal problems with the program — or how they’ll accomplish the necessary changes technically.
“Even though NSA does not have the ability at this time to stop collecting ‘about’ information without losing some other important data, the Agency will stop the practice to reduce the chance that it would acquire communications of U.S. persons or others who are not in direct contact with a foreign intelligence target,” the NSA wrote in the statement.
The potential options might include adjusting the way “upstream” collection works, to prevent vacuuming up American data or restrict its access, or immediately purging the information upon receipt. The NSA will likely litigate the option to petition the court to maintain access to the same data in emergency situations, the official said.
The Office of the Director of National Intelligence and the Privacy and Civil Liberties Oversight Board have previously stated that preventing this type of collection would create massive holes in foreign intelligence collection. The legal authority to collect digital information overseas — the program the intelligence community has described as the “crown jewel” of their capabilities — is currently up for debate in Congress, to be adjusted or reauthorized by the end of 2017. The ODNI has said maintaining those authorities is its top legislative priority in 2017.
Civil liberties advocates immediately hailed the program’s suspension as a major victory in curtailing the NSA’s spying authorities. “This change ends a practice that allowed Americans’ communications to be collected without a warrant merely for mentioning a foreign target,” Sen. Ron Wyden (D-Ore.) told the Times.
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Jenna McLaughlin is Foreign Policy's intelligence reporter. You can reach her on secure messaging app Signal at 203-537-3949. @JennaMC_Laugh