Bulk Collection of Signals Intelligence Technical Options (2015) / Chapter Skim
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1 Introduction and Background
1 Introduction and Background
Pages 13-25
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government collection and storage of bulk data "creates a potential for abuse," but he explained that signals intelligence data were collected only for "legitimate national security purposes" and that the government had no interest in using any collected data to target minorities or 1 The White House, "Remarks by the President on Review of Signals Intelligence," Office of the Press Secretary, January 17, 2014, http://www.whitehouse.gov/ the-press-office/2014/01/17/remarks-president-review-signals-intelligence.
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The Committee on Responding to Section 5(d) of Presidential Policy Directive 28: The Feasibility of Software to Provide Alternatives to Bulk Signals Intelligence Collection was formed in response.
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. Indeed, recent events make clear that national security threats will continue to be dynamic and more unpredictable than those during the Cold War, so that effective intelligence capabilities will remain essential.
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To provide the context for the committee's subsequent discussion, particularly on ways to automate oversight strategies, this section provides a brief overview of the constitutional and legal framework that currently governs intelligence surveillance activities. Mindful that many long-standing legal interpretations are now under review by Congress and have also been challenged in lower federal courts, and that there has been no final disposition of these questions by either Congress or the Supreme Court, the committee does not discuss the current legal debate in depth.
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All three branches of government have a constitutional role to play in intelligence programs. The executive branch is responsible for executing intelligence programs; congressional committees have responsibility for the initial authorization, funding, and oversight of programs; and the federal courts provide legal review in the course of litigation and also, in a limited number of cases, prior authorization through the specially created FISC.8 Authoritative descriptions of the legal constraints imposed on U.S.
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Thus, because the phone company had retained the numbers of calls made, collecting them with a "pen register" was not a Fourth Amendment search requiring prior court authorization by warrant. Some question whether Smith remains "good law" today in light of the differing technology involved in modern metadata collection; this is the subject of current litigation.
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the long-standing view that foreign intelligence, as a core presidential function, could not be regulated constitutionally by congressional statute.14 Nonetheless, passage of FISA, which introduced court approval of intelligence collection for the first time, was encouraged by a contemporaneous decision of the U.S. Supreme Court, intimating that much of such domestic national security collection might be subject to Fourth Amendment requirements for prior judicial approval through a warrant application process.15 In response, FISA created a unique procedural approval process overseen by a new Article III court, the FISC, which was designed to authorize electronic intelligence surveillance in the 13 National Security Agency, United States Signals Intelligence Directive USSID SP0018, (U)
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FISA was amended following the collection of domestic communications metadata that began in 2001. This was done initially at presidential direction outside normal FISA processes, a decision that proved controversial.17 It was subsequently brought within the FISA process in 2006 through the "business records" provision of Section 215 of the USA Patriot Act.18 This allowed the FISC to require production of documents and other tangible things determined relevant to national security investigations, much as other courts do in criminal and grand jury investigations.
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To ensure that all collection was consistent with constitutional requirements, a broad operational "charter," Executive Order 12333, "United States Intelligence Activities," was promulgated in 1981 by the Reagan Administration; this has continued without significant change in collection authorities until the present. This executive order provides the basic authorities and principles under which all national security agencies must operate.22 Importantly, at §2.8, "Consistency with Other Laws," it provides: "Nothing in this Order shall be construed to authorize any activity in violation of the Constitution or statutes of the United States." The provisions of Executive Order 12333 are further supported by detailed operating regulations applicable to each individual agency; in the case of NSA, Department of Defense Regulation 5240.1-R, its clas 20 David S
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1.4.3 Legal Authorities for Collection and Use of Information The legal authorities under which NSA operates are described in a public document entitled NSA Missions, Authorities, Oversight and Partnerships.24 As noted above, these authorities include Executive Order 12333 and the Foreign Intelligence Surveillance Act of 1978, as amended. Executive Order 12333 is the foundational authority on which NSA relies to collect, retain, analyze, and disseminate foreign SIGINT information.
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Litt, "Privacy, Technology and National Security: An Overview of Intelligence Collection," speech, Washington, D.C., July 18, 2013, http://www.dni.gov/index.php/newsroom/ speeches-and-interviews/174-speeches-interviews-2009. b PPD-28 added two additional restrictions: a requirement that the FISC approve the RAS and a reduction in the number of hops that can be followed from three to two (The White House, Presidential Policy Directive/PPD-28, "Signals Intelligence Activities," Office of the Press Secretary, January 17, 2014, http://www.whitehouse.gov/the-press-office/2014/01/17/ presidential-policy-directive-signals-intelligence-activities)
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A January 2014 presidential state 25Joint Statement: NSA and Office of the Director of National Intelligence. 26The White House, Presidential Policy Directive/PPD-28, "Signals Intelligence Activities," 2014.
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INTRODUCTION AND BACKGROUND 25 ment announced that the number of "hops" would be reduced from three to two and that the FISC would be tasked with approving RAS selectors.27 27 See The White House, "Remarks by the President on Review of Signals Intelligence," 2014, and U.S. Foreign Intelligence Surveillance Court, "In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things.
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