What the NSA Collects via 702

New York Times reporter Charlie Savage writes about some bad statistics we’re all using:

Among surveillance legal policy specialists, it is common to cite a set of statistics from an October 2011 opinion by Judge John Bates, then of the FISA Court, about the volume of internet communications the National Security Agency was collecting under the FISA Amendments Act (“Section 702”) warrantless surveillance program. In his opinion, declassified in August 2013, Judge Bates wrote that the NSA was collecting more than 250 million internet communications a year, of which 91 percent came from its Prism system (which collects stored e-mails from providers like Gmail) and 9 percent came from its upstream system (which collects transmitted messages from network operators like AT&T).

These numbers are wrong. This blog post will address, first, the widespread nature of this misunderstanding; second, how I came to FOIA certain documents trying to figure out whether the numbers really added up; third, what those documents show; and fourth, what I further learned in talking to an intelligence official. This is far too dense and weedy for a New York Times article, but should hopefully be of some interest to specialists.

Worth reading for the details.

Posted on September 20, 2017 at 6:12 AM10 Comments


Ross Snider September 20, 2017 9:49 AM

The MCT problem has been known for some time. Shout out to independent journalists (e.g. Marcy Wheeler) who have been very careful about reporting accurately in this space for a long time.

Who? September 20, 2017 9:51 AM

Another factor that should be considered is that NSA ability to collect intelligence increases each year. Programs like PRISM is what I would call “programs that return immediate profit”—once a corporation like Google, Apple or Microsoft joins the PRISM program all data is available immediately to the IC. On the other hand, programs like XKeyScore are more difficult to run and its performance will increase over time. There is no such huge “return” on these programs, but I have few doubts its ability to capture intelligence has increased since 2011.

Al September 20, 2017 1:52 PM

‘One death is a tragedy. A million deaths is just a statistic.’ -J. Stalin

Now substitute “illegal warrantless search”.

Besides, Congress simply created several expost facto laws to make it all good.

Someday people may realize what they thought were individual irrevocable rights have become mere privileges granted and withdrawn by the government at will, without just cause or due process.

tomb September 20, 2017 3:50 PM

For reference: Some conditions off the top of my head whereby domestic collection on US citizens is authorized for law enforcement, military, or domestic intelligence operatives.

1) Outsourcing collection or analysis to intelligence partners.
2) Spectral signatures (eg thermal) are unprotected under US domestic law provided that an average person could acquire the same collection and analysis abilities using off the shelf equipment.
3) The collecting agency ignores domestic law whether out of zeal or for bureaucratic purposes. In these cases, the Inevitable Discovery doctrine may be used to secure a conviction without explicitly making reference to illegally collected information. Alternately, illegal collection may be ordered for the purpose of lawfare against political adversaries.
3.5) A tactic increasingly used, one enabled by anti-terrorism provisions, is to take a case to trial without a public disclosure of evidence. Likewise, in some cases it is not even necessary for a jury or judge to have access to protected “national security secrets”.
4) Communications flow overseas. This may happen if a server is located outside the country where the request originates.
5) Communication is with a foreign individual whether or not there is suspicion of wrongdoing.
6) Communication is linked 2-3(?) degrees from the point of an investigation. For example, a friend of a friend is in contact with someone suspected of potentially being a terrorist/spy/organized crime operative.
7) Communication takes place on federal property(?) or involves certain types of federal employees and/or an individuals with security clearances.
8) You are a US citizen outside the United States.
9) Metadata is collected and analyzed by non-human/automated entities (eg PRISM).
10) George Bush’s and John Yoo’s “secret” interpretations of the US Constitution.
11) Coercing or otherwise incentivizing voluntary individual or corporate cooperation.
12) Use of low-ish key agencies like the DHS that blur the line between a foreign and domestic collection agency or otherwise serve as a “fusion center” or coordinator of intelligence agencies.
13) Others(?)

tomb September 20, 2017 3:54 PM

4.5) Communications that are via satellite link can also be legally collected without a warrant or reasonable suspicion of wrongdoing. Possibly, this would include all SIGINT intercepted by satellite or high-altitude interception equipment.

Broken Gavel September 20, 2017 9:41 PM

In re the matter of Prism v. Upstream

I have no idea what Judge John Bates ruled on in that particular case, as I don’t have access to the legal databases, but the ruling is likely to be invalidated, null, and void if it is based on such false or incorrect statistics. Furthermore, if the judge isn’t getting in trouble himself, he is likely to be furious over the false, incorrect, and misleading testimony that was introduced in court.

Who watches the watchers September 21, 2017 1:14 PM

“There is no such huge “return” on these programs”

I don’t think we can assume that. We don’t know.

What we can assume is that whatever return there is will not be scrutinized in a cost/benefit way that the plurality of Americans would agree with, for better or worse.

We can also assume, using history as a guide, that these programs will be abused and perhaps even co-opted by adversarial groups, including those who successfully infiltrate our political security apparatus as we’ve seen with Manafort/Flynn/Trump/Putin

Dan H September 25, 2017 7:04 AM

@Who watches the watchers

“successfully infiltrate our political security apparatus as we’ve seen with Manafort/Flynn/Trump/Putin”

Obama/Rice/Power and Hillaryous/Kremlin/China

Samantha Power had no national security interest in unmasking Americans, yet did so at a rapid pace at the end of the Obama administration. Likewise, Rice was unmasking Americans for political purposes. Rice’s explanation was due to “back-channel communications with UAE” is perplexing since Obama had back-channel communications with Iran because he was elected in 2008 and this never created any controversy.

Hillaryous gave Russia and China all of the top secret data she had on her email server, and because of who she is, there was a sham FBI investigation that Comey had rigged from the beginning to exonerate her. Deleting 33,000 emails under subpoena isn’t exactly legal either.

Let’s not get into Bill receiving a $500,000 check from a Kremlin backed bank for a speech he gave while Hillary was secretary of state. Or her campaign chairman, John Podesta, who has ties to a Russian energy firm (Joule) with Kremlin ties. Or Uranium One deal with Russia.

Or that Mrs. Clinton told Obama she would cease Clinton Foundation activities if she became secretary of state. But she continued those activities anyway. That at the very least is unethical.

Dan H September 25, 2017 1:54 PM

Wow moderator. Remove my comment about Obama/Rice/Power using their powers to political purposes and Hillaryous Clinton being in bed with the Kremlin and it gets removed. But you leave one about fiction of Trump/Russia collusion I was responding to.

Leave a comment


Allowed HTML <a href="URL"> • <em> <cite> <i> • <strong> <b> • <sub> <sup> • <ul> <ol> <li> • <blockquote> <pre> Markdown Extra syntax via https://michelf.ca/projects/php-markdown/extra/

Sidebar photo of Bruce Schneier by Joe MacInnis.