NSA FISA Surveillance: Is Obama’s Latest Transparency Move A Trick?

As part of its ongoing response to the revelations about surveillance programs made by Edward Snowden, a former contractor for the U.S. National Security Agency, or NSA, the intelligence community will release annual statistics on the government’s use of its authorities under the Foreign Intelligence Surveillance Act, or FISA -- including the same statutes under which the bulk phone-call data and email collection programs take place.

But it’s possible those statistics could be so broad as to be essentially meaningless. Or worse, civil liberties advocates fear they could actually obscure the volume of surveillance activities taking place.

“In June, President [Barack] Obama directed the Intelligence Community (IC) to declassify and make public as much information as possible about certain sensitive U.S. Government surveillance programs,” James R. Clapper, director of national intelligence, said in a statement late Thursday. Under several FISA authorities, he said, “[T]he IC will release the total number of orders issued during the prior twelve-month period, and the number of targets affected by these orders.”

These annual statistics could provide more insight into how the government is using its various intelligence-gathering authorities. But given what we know about the bulk phone-records collection, operated under Section 215 of the USA Patriot Act, it’s easy to see how these numbers might not reflect the massive volume of collection and surveillance taking place.

Under the phone metadata program, the NSA collects call details on all phone calls placed within the U.S. and between a foreign phone number and a domestic one through orders issued to telecommunications companies by the Foreign Intelligence Surveillance Court. Each court order is renewed after 90 days. All that information goes into a massive database that NSA analysts query when looking for information on a specific phone number. Last year, government officials have revealed, the NSA queried the database about 300 times.

An example based on these data shows how they might be misleading. If the government releases the number of orders and the number of targets affected by this Section 215 program, those figures would give the impression that the program operated on a much smaller scale. Because requests for all of a company’s relevant call data are contained in one order, the fact that each order represents the collection of millions of Americans’ information would be obscured by a relatively small statistic on annual Section 215 orders. Most likely, the figure released for the affected targets would be about 300, rather than include the millions of people whose information is in the database. Moreover, because each of the 300 queries actually pulls out data on thousands if not millions of people by retrieving the data of every number within as many as three degrees of the target number, the figure of 300 would obscure how the program actually works.

Thanks to Snowden, the annual statistics related to this particular Section 215 program won’t obscure the facts we already know about it. Due to the fact these figures would likely be aggregated with numbers associated with other Section 215 programs, the statistics won’t tell us what else is taking place under the provision. But what about the authorities -- such as the pen register/trap and trace provision -- that we know very little about? As Marcy Wheeler wrote on her emptywheel blog Thursday, given what we know about the phone data program, it’s reasonable to assume that “any number they show us could represent a privacy threat far bigger than the number might indicate.”

“The reason you make this information available is so you have the ability to evaluate the costs and effectiveness and privacy impacts of these programs,” Marc Rotenberg, the president and executive director of the pro-transparency Electronic Privacy Information Center, told Politico. While he saw good news in the announcement, he added, “I don’t think we’re yet at the point we can say we have enough information to be able to do that.”

The new policy will reveal some new numbers about these programs that are not yet public. As Wheeler wrote, the catch is it will do so “without providing any numbers on how many Americans get sucked into this dragnet.”