Administration Grants FBI More Raw Access To NSA Data Just As FBI Claims To Be Implementing New Minimization Procedures

Spencer Ackerman of the Guardian was the first to report the news -- what there was of it -- that the FBI's rules governing its access to data collected by the NSA have changed. To what exactly, no one knows. Neither agency is offering any details.

The classified revisions were accepted by the secret US court that governs surveillance, during its annual recertification of the agencies' broad surveillance powers. The new rules affect a set of powers colloquially known as Section 702, the portion of the law that authorizes the NSA's sweeping "Prism" program to collect internet data. Section 702 falls under the Foreign Intelligence Surveillance Act (Fisa), and is a provision set to expire in 2017.

A government civil liberties watchdog, the Privacy and Civil Liberties Oversight Group (PCLOB), alluded to the change in its recent overview of ongoing surveillance practices.

As of 2014, there were few limits to the FBI's access to NSA data. The PCLOB expressed its concerns at that time. Apparently, things have improved, but no one's willing to detail the additional restrictions. We're just expected to believe they're in place.

[T]he PCLOB's new compliance report, released last month, found that the administration has submitted "revised FBI minimization procedures" that address at least some of the group's concerns about "many" FBI agents who use NSA-gathered data.

"Changes have been implemented based on PCLOB recommendations, but we cannot comment further due to classification," said Christopher Allen, a spokesman for the FBI.

Other spokespeople had similar nods of "yes, more restrictions" to add and even hinted that these new limits may be made public at some point. Heartening news" perhaps. We don't know how expansive the data-sharing was prior to the new guidelines and we still don't know how scaled back it will be post-restrictions.

For that matter, it seems as though the new limits will be largely offset by the administration's earlier announcement that the FBI would have moreaccess to NSA data.

The Obama administration is on the verge of permitting the National Security Agency to share more of the private communications it intercepts with other American intelligence agencies without first applying any privacy protections to them, according to officials familiar with the deliberations.

The change would relax longstanding restrictions on access to the contents of the phone calls and email the security agency vacuums up around the world, including bulk collection of satellite transmissions, communications between foreigners as they cross network switches in the United States, and messages acquired overseas or provided by allies.

So, on one hand, the FBI is claiming that its backdoor search permissions have been dialed back, but that comes roughly two weeks afterthe administration announced its plans for expanded data sharing. What's being scooped up under national security authority is being used for plain vanilla law enforcement. Not only can the FBI access the NSA's collections (and it has been... for several years now), but it can pass info it finds down the line to local law enforcement agencies. Any minimization procedures put in place by the FBI at the suggestion of the PCLOB may still be there, but the agency itself will be given unminimized access to NSA data hauls.

What does this rule change mean for you? In short, domestic law enforcement officials now have access to huge troves of American communications, obtained without warrants, that they can use to put people in cages. FBI agents don't need to have any "national security" related reason to plug your name, email address, phone number, or other "selector" into the NSA's gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called "national security" will be used by police to lock up ordinary Americans for routine crimes. And we don't have to guess who's going to suffer this unconstitutional indignity the most brutally. It'll be Black, Brown, poor, immigrant, Muslim, and dissident Americans: the same people who are always targeted by law enforcement for extra "special" attention.

The rule change will basically codify the FBI's backdoor searches, making it that much tougher to challenge in court. Not only that, but the NSA's overwatch of the data lends everything collected just enough "national security" interest to make evidence collected unavailable to defendants and will encourage even more parallel construction by law enforcement agencies.

The "incidental" collection of Americans' communications and data will no longer be just a regrettable part of the "collect it all" approach. It will be a feature, rather than a bug. Local law enforcement agencies can't do much to pursue overseas suspects but they will be very interested in anything pulled from NSA haystacks that falls into their jurisdictions. If the FBI has actually beefed up its minimization policies -- as the Guardian's article suggests -- then it will have nothing to pass along. The agency may actually have more restrictive policies now, but the administration's proposal would effectively give the FBI a reason to ignore them.

Furthermore, the newexpansion of sharing actually does very little to expanddomestic law enforcement use of NSA collections. The FBI has been able to do this since 2002, when the FISA Court granted the Bush administration its request for expanded sharing. The Bush team expanded this again in 2008 and the Obama administration has been at work on the logistical framework and codification of ongoing domestic surveillance.

The FBI may have new minimization procedures but they only kick in afterit's already helped itself to the NSA's raw data. Since it has the permission to pass information along for law enforcement purposes, the only entities that may see onlyminimized data will be much further down the line.

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