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Thursday, September 26, 2013

NSA Surveillance Leaks: Background and Issues for Congress

John W. Rollins
Specialist in Terrorism and National Security 

Edward C. Liu
Legislative Attorney

Recent attention concerning National Security Agency (NSA) surveillance pertains to unauthorized disclosures of two different intelligence collection programs. Since these programs were publicly disclosed over the course of two days in June, there has been confusion about what information is being collected and under which authorities the NSA is acting. This report clarifies the differences between the two programs and identifies potential issues that may help Members of Congress assess legislative proposals pertaining to NSA surveillance authorities.

The first program collects in bulk the phone records—including the number that was dialed from, the number that was dialed to, and the date and duration of the call—of customers of Verizon and possibly other U.S. telephone service providers. It does not collect the content of the calls or the identity of callers. The data are collected pursuant to Section 215 of the USA PATRIOT ACT, which amended the Foreign Intelligence Surveillance Act (FISA) of 1978. Section 215 allows the FBI, in this case on behalf of the NSA, to apply to the Foreign Intelligence Surveillance Court (FISC) for an order compelling a person to produce “any tangible thing,” such as records held by a telecommunications provider, if the tangible things sought are “relevant to an authorized investigation.” Some commentators have expressed skepticism regarding how such a broad amount of data could be said to be “relevant to an authorized investigation,” as required by the statute. In response to these concerns, the Obama Administration subsequently declassified portions of a FISC order authorizing this program and a “whitepaper” describing the Administration’s legal reasoning.

The second program targets the electronic communications, including content, of foreign targets overseas whose communications flow through American networks. These data are collected pursuant to Section 702 of FISA, which was added by the FISA Amendments Act of 2008. This program acquires information from Internet service providers, as well as through what NSA terms “upstream” collection that appears to acquire Internet traffic while it is in transit from one location to another. Although this program targets the communications of foreigners who are abroad, the Administration has acknowledged that technical limitations in the “upstream” collection result in the collection of some communications that are unrelated to the target or that may take place between persons in the United States. Notwithstanding these technical limitations, the FISC has held that this program is consistent with the requirements of both Section 702 and the Fourth Amendment provided that there are sufficient safeguards in place to identify and limit the retention, use, or dissemination of such unrelated or wholly domestic communications.

The Obama Administration has argued that these surveillance activities, in addition to being subject to oversight by all three branches of government, are important to national security and have helped disrupt terror plots. These arguments have not always distinguished between the two programs, and some critics, while acknowledging the value of information collected using Section 702 authorities, are skeptical of the value of the phone records held in bulk at NSA. Thus, recent legislative proposals have primarily focused on modifying Section 215 to preclude the breadth of phone records collection currently taking place. They have also emphasized requiring greater public disclosure of FISC opinions, including the opinion(s) allowing for the collection of phone records in bulk.

This report discusses the specifics of these two NSA collection programs. It does not address other questions that have been raised in the aftermath of these leaks, such as the potential harm to national security caused by the leaks or the intelligence community’s reliance on contractors.

Date of Report: September 4, 2013
Number of Pages: 21
Order Number: R43134
Price: $29.95

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