Things The Intelligence Community Is Cool With: Backdoor Searches, Skirting Reporting Requirements, Parallel Construction

More answers have been provided to Senate Intelligence Committee questions (most of those penned by the always-inquisitive Ron Wyden) by the Office of the Director of National Intelligence. Some, like how often the NSA "incidentally" collects domestic communications, remain unanswered. But the ODNI's answers [PDF] -- given to the Committee in July -- have finally been made public. There are a few things worth noting in this rare display of transparency. (By which I mean a lack of redactions, rather than expansive openness by the ODNI).

To begin with, the ODNI argues the new amicus position created by the USA Freedom Act is harmful to national security. Its theory? Any delays caused by the introduction of some semblance of an adversarial process only slows the NSA down.

The appointment of an amicus curiae is not without effect. Notably, it is likely to increase the time needed for the government to obtain the authorities it is seeking. For instance, in 2015 when the FISC appointed an amicus curiae in connection with its review of the Section 702 certifications, the Court ultimately extended the time for its consideration of the 2015 Section 702 certifications by 90 days, issuing an opinion and order approving those certifications more than two months alter the statute otherwise would have required. As the government noted at that time, such a delay could be harmful to national security under certain scenarios, for instance if the government were to submit an additional certification or make an important time sensitive change in the Section 702 targeting or minimization procedures.

This sounds a lot like law enforcement's continual annoyance at warrant requirements. Respecting things like the Fourth Amendment and the idea of checks and balances just takes too long -- even when it means spending a hour trying to talk someone into granting consent for a search, rather than phoning a judge to get a warrant sworn out. The ODNI's complaint is, basically, it doesn't want anyone arguing for the rights of Americans (who get swept up in collections and deliberately targeted by the FBI) or on behalf of the rest of the world the NSA views as little more than a prolific source of data.

Wyden also wanted to know who's allowed to unmask US persons in NSA collections. The ODNI answered "any authorized recipient" of NSA intelligence, which hardly answers the question. Drilling it down a little further, the ODNI noted it has 20 individuals in the NSA who can authorize unmasking. There are doubtless many more in the FBI, which can use 702-derived collections to search for evidence of nearly any criminal activity or just browse stuff if it can be argued the information is already "publicly available." The decision to unmask US persons in the FBI is left to "agents and analysts" conducting "fully predicated investigations."

As for its all-but-abandoned duties to inform defendants of the use of Section 702-derived evidence, the ODNI explained it will almost never have to do this because of parallel construction.

As we have publicly stated previously, the Department has concluded that in determining whether information is "derived from" FISA-authorized surveillance, including Section 702, the appropriate standards and analyses are similar to those applied in the context of surveillance conducted pursuant to the criminal Wiretap Act, Title of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2522. As such, the "derived from" standard incorporates a "fruit of the poisonous tree" analysis analogous to that conducted under the Fourth Amendment exclusionary rule context. The general question under a "fruits" analysis is whether the evidence was acquired as an indirect result of the surveillance, taking into account doctrines such as independent source, inevitable discovery, and attenuation.

In other words, if there's any way the government could have conceivably obtained this evidence -- rather than the way it actually did it -- the DOJ can bypass its notification obligations.

As for the number of times Intelligence Community components access purely domestic communications -- either directly or "incidentally" -- the ODNI is nowhere closer to providing the numbers explicitly requested by Sen. Wyden on multiple occasions or fulfilling the reporting requirements of USA Freedom Act.

The ODNI claims one recipient of 702 data (the CIA) "does not currently have the technical capability" to track these numbers. According to the ODNI, this capability won't be up and running until the end of 2018. The ODNI goes on to point out the FBI performs no internal tracking of its 702 searches/queries and makes no statement suggesting the agency is even looking into providing these numbers. The NSA, however, performed 30,355 "queries" on US persons' data, using 2,280 "approved" search terms.

The ODNI also explains the difference between a "query" and a "search" in reference to accessing unminimized domestic data and communications. A "query" flags relevant data in existing collections. A "search" actually looks at the contents of communications. In both cases, the ODNI says no warrant is needed. If the domestic communications are swept up lawfully (as part of a FISA-ordained collection), there's no Fourth Amendment violation when content is accessed by a "search." The legal rationale is that the Fourth Amendment is adhered to during the collection process, so it cannot possibly be violated when the collections are accessed by the FBI, NSA, CIA or other IC component.

Wyden's long-running question about incident collection of US persons communications remains unanswered. Questions about the FBI's prolific use of NSA data have been answered with a shrug. The DOJ has been given a pass on its evidence source obligations and IC components have multiple ways of search foreign-facing collections for US persons communications and data, all while supposedly upholding Fourth Amendment ideals. These are the powers the ODNI wants to see renewed for several years with zero changes to the status quo and, given the looks of surviving legislation, its wishes might come true.