The National Security Agency will stop using a controversial form of warrantless surveillance that collects Americans’ communications with those outside the United States based on the mention of a foreign surveillance target.
The decision was announced Friday and followed an evaluation prompted by “compliance lapses,” according to a statement issued by the NSA. As part of the decision the agency will also delete most of the previously intercepted communications collected under its Upstream surveillance program.
“NSA will no longer collect certain internet communications that merely mention a foreign intelligence target,” read a statement issued Friday by the agency. “Instead, NSA will limit such collection to internet communications that are sent directly to or from a foreign target.”
The change in policy concerns the NSA’s collection of international internet communications — including emails, web-browsing traffic, and other messages — as authorized under Section 702 of the FISA Amendments Act. Under the Upstream program, Americans communications with people outside the U.S. could be stored and read if they are “to, from, or about” an approved “selector.”
Selectors can include email addresses or phone numbers of foreign targets. Under the change, only communications that are directly to or from those “selectors” can still be surveilled.
The last disclosure of Section 702 surveillance data showed that in 2015, more than 94,000 foreign people, groups or entities outside the United States were targeted for surveillance.
The intelligence community has argued that such surveillance is needed to collect information on terrorist plots and other threats.
The change in policy comes after the NSA said it conducted an in-house review of Section 702 activities and “discovered several inadvertent compliance lapses” that involved queries of Americans. Those lapses were reported to Congress and the U.S. Foreign Intelligence Surveillance Court. After the reports, the NSA devised a plan to resolve the issue. The FISA court recently approved the plan and the surveillance changes, the NSA said.
Rep. Adam Schiff, the Ranking Democrat on the House Permanent Select Committee on Intelligence, said the NSA’s decision was “a sound response to the technological challenges of the program and the unintended collection of certain U.S. person information.”
“Going forward, I will continue to expect strict compliance with the FISA Court orders and will push for Section 702’s reauthorization along with any additional reforms needed to further strengthen and institutionalize protections for privacy and transparency,” the California Democrat said.
Section 702 of the FISA Amendment Act is set to expire at the end of the year if Congress does not reauthorize it.
Privacy and civil liberties advocates, who have argued for reforms since the programs were revealed through leaks by former NSA contractor Edward Snowden, applauded the change. But they said future reforms of the program are still needed.
“The content of our emails and texts contains incredibly personal information about our work, our families, and our most intimate thoughts. The NSA should never have been vacuuming up all of these communications, many of which involved Americans, without a warrant,” said Michelle Richardson, deputy director of the Freedom, Security, and Technology Project at the Center for Democracy and Technology. “While we welcome the voluntary stopping of this practice, it’s clear that Section 702 must be reformed so that the government cannot collect this information in the future.”
Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, said the warrantless surveillance of Americans will still be allowed to continue under the auspices of Section 702 of FISA and that Congress should step in to further reform the law.
“While the NSA’s policy change will curb some of the most egregious abuses under the statute, it is at best a partial fix,” she said. “Congress should take steps to ensure such practices are never resurrected and end policies that permit broad, warrantless surveillance under Section 702, which is up for reauthorization at the end of the year.”
• Andrea Noble can be reached at anoble@washingtontimes.com.
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