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Pincus: Is NSA keeping too much?

First Published Jul 16 2014 07:08 am • Last Updated Jul 16 2014 07:10 am
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WASHINGTON • The National Security Agency does not have the time or personnel to eliminate innocent U.S. citizens’ communications collected under Section 702 of the Foreign Intelligence Surveillance Act.

The programs gather foreign intelligence by soaking up electronic communications to, from or about targeted non-U.S. citizens abroad.

The NSA’s procedures require the destruction of irrelevant communications made by or concerning U.S. citizens, but that "rarely happens," notes a July 2 report from the five-member Privacy and Civil Liberties Oversight Board (PCLOB).

That’s because "NSA analysts do not review all or even most communications acquired under Section 702," the PCLOB found.

As a result, "apart from communications acquired inadvertently, U.S. persons’ communications are not typically purged or eliminated from the government’s Section 702 databases before the end of their default retention periods even when the communications pertain to matters unrelated to foreign intelligence or crime," the board said.

It reported that the NSA, the CIA and the FBI have different rules under which archive searches can be conducted.

At the NSA, queries of Section 702 databases based on a U.S. citizen’s name, keywords or phrases or email addresses can be undertaken if they are "reasonably likely to return foreign intelligence information," even if there is no suspicion of wrongdoing.

Prior approval is required and a record is kept of that approval. The NSA last year approved 198 terms involving identifiers of U.S. citizens for content queries of communications acquired under Section 702.

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The CIA has the same standards for content queries and conducted 1,900 of them in the unreviewed Section 702 database in 2013, though 40 percent were for other U.S. intelligence agencies.

The FBI queries are not just for foreign intelligence but also for evidence of a crime. The FBI reviews its 702-acquired data whenever it opens a new national security investigation or an assessment that may be unrelated to national security.

As a result of these differing approaches, the board said, "The applicable rules may allow a substantial amount of private information about U.S. persons to be acquired by the government, examined by its personnel, and used in ways that may have a negative impact on those persons."

Although there are no reliable figures on how many communications of U.S. citizens have been acquired, the board said, "The government may be gathering and utilizing a significant amount of information about U.S. persons under Section 702."

The board emphasized that it found no illegitimate activity or abuse during its review nor efforts to circumvent the legal limits or rules governing their use of the data.

Still, is your privacy violated when the government collects and stores your information? Is it violated when your archived data are queried and read, or does a violation arise only when that information is made public or used against you?

The board says: "The collection and examination of U.S. persons’ communications represent a privacy intrusion even in the absence of misuse for improper ends."

As a result, the board wants more clarification about the gathering and handling of U.S. citizens’ communications.

Much of what the board found relates to a July 5 Washington Post article that described some 160,000 intercepted email and instant-message conversations supplied by former NSA contractor Edward Snowden.

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