December 12, 2014

Cromnibus Authorization: The Spies Have It

About a year ago, Congress was outraged when it found out that the NSA was likely spying on them, or at best, was treating our elected officials the same as all other Americans. One can infer from that statement that they are 'monitored' just as you and I are.

Yesterday, the House approved (and the Senate is ready to approve) the 'Cromnibus' funding package of appropriations bills, including the bill authorizing intelligence spending.

That bill includes rules under which 'incidentally acquired communications' are to be handled; here's some of the language that has raised the attention and ire of several House members under Section 309. Procedures for the retention of incidentally acquired communications (all underlining added):

Under the 'Definitions' section:
Covered communication. The term covered communication means any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage.
Under the 'Requirement to Adopt' section:
Not later than 2 years after the date of the enactment of this Act each head of an element of the intelligence community shall adopt procedures approved by the Attorney General for such element that ensure compliance with the requirements of paragraph (3).
And, here's the gist of Paragraph 3:
(A) The procedures...shall apply to any intelligence collection activity not otherwise authorized by court order (including an order or certification issued by a court established issued by a court established under..the Foreign Intelligence Surveillance Act of 1978 (this is the FISA Court we hear about), subpoena, or similar legal process that is reasonably anticipated to result in the acquisition of a covered communication to or from a Unites States person and shall permit the acquisition, retention, and dissemination of covered communications subject to the limitations in subparagraph (B).
Subparagraph (B) says that:
...A covered communication shall not be retained in excess of 5 years unless
(i) the communication has been affirmatively determined, in whole or in part, to constitute foreign intelligence or counterintelligence or is necessary to understand or assess foreign intelligence or counterintelligence;
(ii) the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency;
(iii) the communication is enciphered or reasonably believed to have a secret meaning;
(iv) all parties to the communication are reasonably believed to be non-United States persons;
(v) retention is necessary to protect against an imminent threat to human life, in which case both the nature of the threat and the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the date such retention is extended under this clause;
(vi) retention is necessary for technical assurance or compliance purposes, including a court order or discovery obligation, in which case access to information retained for technical assurance or compliance purposes shall be reported to the congressional intelligence committees on an annual basis; or
(vii) retention for a period in excess of 5 years is approved by the head of the element of the intelligence community responsible for such retention, based on a determination that retention is necessary to protect the national security of the United States...(in which case several reporting requirements apply)
So: right now, stuff they accidentally trip over when spying on us can already be held and disseminated for five years, and starting in 2016, stuff they trip over accidentally when spying on us can be kept longer than five years, and shared for reasons other than national security?

And when there's a need to protect against, or prevent from happening, an imminent threat to human life - that's one that is likely to occur at any moment mind you, the info can be retained and handed off to law enforcement for more than five years, but Congress doesn't need to know about it for 30 days or so after the fact. Hopefully the information would be passed off before the imminent threat became a reality, but if it takes two years to implement changes in document retention procedures, I'm not confident on that one.

If you accept that spying on Americans is necessary, must you also accept that 'incidentally acquired' information, gathered without warrant or approval, from a person who is not a subject of an authorized search is necessary?  And must you also accept that this information can just sit around in some basement somewhere?

About a year ago, Congress was outraged when it found out that the NSA was likely spying on them...