The second exposes that, in 2011, as Bates was going through the mess of upstream surveillance, he questioned whether the definition of “active user,” as it refers to multiple communication activities, referred to the single user. The issue is critical because if a department is defined to be used by a group say, Wikileaks it’s likely a user of that facility might be an anonymous US person user, the information of which would only be isolated under the new minimization procedures if the specific user were reviewed (not that it implied in the end; NSA doesn’t appear to have implemented the exclusion regime in meaningful fashion). Bates never got a public disclosure to that question, which is one of a plenty of reasons why Rosemary Collyer’s April 26 702 opinions may not solve the problem of upstream collection, especially not with back door searches permitted.
As it appears, some of the countless important documents published in the dump can pertain to a closely similar issue: whether the state can collect on selectors it identifies may be used by US persons, only to smoke out the US persons after the fact. In 2014, a provider disputed orders (individual “Directives” listing record identifiers NSA wanted to collect) that it assumed would amount to conducting surveillance “on the servers of a U.S.-based provider” in which “the dissemination of U.S. person will be collected as part of such surveillance.” The provider was banned from reading the opinions that set the pattern permitting this kind of collection. Unsurprisingly, the provider lost its challenge, so we should expect that some 702 collection collects US person communications, using post-tasking process preferably than pre-targeting intelligence to protect American privacy.
The government claims that, by its words, Section 1806(i) applies only to an information that is unintentionally acquired,” not to a communication that is deliberately acquired under a mistaken belief about the location or non-U.S. person situation of the target or the location of the agents to the communication. See Government’s filing of August 28, 2008. The Court sees this analysis of Section 1806(i) strong, and on this basis infers that Section 1806(i) does not need the destruction of the types of communications that are directed by the special retention provisions.”
Take your time to comment on this article.
