In privacy victory, U.S. NSA to stop collecting communications “about” foreign intel targets

Washington D.C.  — The U.S. National Security Agency will end the practice of collecting communications content “about” intelligence targets and will purge much of the existing data collected “upstream.” “About” collection was one of the NSA’s most invasive practices — it would compel communications providers to scan the content on the telecommunications backbone for mentions of persons. The persons communicating were not the target of the surveillance. The privacy win should set the stage for reform debate as the legal provision used to conduct “about” searches — Section 702 of the Foreign Intelligence Surveillance Act (FISA) — is set to sunset at the end of the year.

Reports indicate the change was made to comply with rulings by the secretive FISA Court. The change should now be codified through reforms that limit U.S. surveillance authorization. Moreover, while the change is, on its face, a major win for privacy, a number of questions should be answered, including how the change would be implemented in practice.

“We praise the end of ‘about’ searches of internet communications as a victory for privacy, though we now await more information on implementing the change to a program under Section 702 of FISA. We expect now greater support for statutory changes to ensure the NSA conforms with human rights obligations,” said Amie Stepanovich, U.S. Policy Manager at Access Now.

“About” collection is an element of broader practice whereby the NSA scans the telecommunications backbone for certain “selectors” of intelligence — so-called “upstream” collection. However, upstream collection also extends to the “to” and “from” lines of communications. Because much of the “to,” “from,” and “about” data was intermingled, the NSA has announced it will also delete most of the data collected “upstream.”

Access Now has called for statutory reform of Section 702 of FISA in order to preserve the flow of communications from the E.U. to the U.S. The E.U.-U.S. “Privacy Shield” was put in place last year to enable the flow of data, but existing U.S. surveillance practices put it under threat. Other necessary reforms include the incorporation of human rights standards into surveillance practice, a narrowed definition of “foreign intelligence information” to limit the scope of data collection, and more limited access to, retention of, and use of data after it is collected.

“The NSA should not wait for adverse rulings from the FISC before making changes that conform with human rights obligations, including the right to privacy. Instead, the U.S. government should adopt the Necessary and Proportionate Principles to guide surveillance practices, and ensure the continued flow of data between the E.U. and U.S.,” said Drew Mitnick, Policy Counsel and Access Now.

For more information on FISA Section 702 and the reform process, visit https://www.accessnow.org/new-call-u-s-surveillance-reform/