As Bobby and others have already noted, the NSA announced Friday that it is ending “about” collection under Section 702’s upstream component. I won’t rehash the basics here; readers should consult Charlie Savage’s essential New York Times story, NSA’s statements (here and here), and Bobby’s analysis. Rather, I want to inject into the discussion a few issues that I haven’t yet seen broached elsewhere.
1) What is the net effect for 702’s intelligence and counterterrorism value?
As Bobby notes, dropping “about” collection means that NSA will also lose some upstream collection of communications to or from a target. It appears that this was the price of placating the FISC after NSA analysts apparently (per the NYT) erroneously queried upstream data seeking information about one or more U.S. persons. (Recall that, as the PCLOB’s 2014 report explained, under the NSA’s 702 minimization procedures “U.S. person identifiers are prohibited from being used to query the NSA’s Section 702 upstream collection of Internet transactions.”).
In isolation, that collateral reduction in “to/from” collection would be a bad thing for NSA’s foreign intelligence mission. Several caveats are in order here, however.
Read the full article at Lawfare.
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