Minimization

by emptywheel

In this post, I compare what Director of National Intelligence Mike McConnell revealed yesterday about why Democratic bills amending FISA were unacceptable with the content of those bills. The comparison shows that DNI McConnell found it unacceptable to require the government to:

• List what the minimization procedures were that protect data collected from Americans
  
• Allow either a FISA judge or Congress to review its compliance with its own minimization procedures

In short, the government promises it will protect American persons' data, but it refused to allow any meaningful oversight of that promise.

---

McConnell Reveals that Democratic Requirements on Minimization Are Too Harsh

Along with blabbing about the fictional "surgical" precision of the Administration's warrantless wiretap program yesterday, Mike McConnell also revealed why the Administration found the Democrats' bills to amend FISA unacceptable: because of some restrictions their bills made on minimization procedures.

So I walked over to the chamber and as I walked into the office just off the chamber, it's the vice president's office, somebody gave me a copy. So I looked at the version and said, 'Can't do it. The same language was back in there.'

Q: What was it?

A: Just let me leave it, not too much detail, there were things with regard to our authorities some language around minimization.

Minimization refers to what the Administration does with information that they collect on people in the United States when they get that information incidentally while tapping someone purportedly outside of the US. This matters to you, because it determines how the Administration will ensure that, if they collect your end of the phone call when you call Pakistan, they don't get to keep or use any part of your end of the phone call that isn't absolutely necessary for the spooks to interpret the wiretap.

McConnell Tries to Deny Withdrawing Support from the House Bill

Helpfully, McConnell also specified how he responded to the bills the Democrats and Republicans proposed leading up to August 4. McConnell is basically trying to dismiss Democratic claims that he reneged on his support for their bill and in the end sided with the Administration's harsher bill.

So we kept going back and forth, so we sent up a version like Monday, we sent up a version on Wednesday, we sent up a version on Thursday. The House leadership, or the Democratic leadership on Thursday took that bill and we talked about it. And my response was there are some things I can't live with in this bill and they said alright we're going to fix them. Now, here's the issue. I never then had a chance to read it for the fix because, again, it's so complex, if you change a word or phrase, or even a paragraph reference, you can cause unintended ...

Q: You have to make sure it's all consistent?

A: Right. So I can't agree to it until it's in writing and my 20 lawyers, who have been doing this for two years, can work through it. So in the final analysis, I was put in the position of making a call on something I hadn't read. So when it came down to crunch time, we got a copy and it had some of the offending language back in it. So I said, 'I can't support it.' And it played out in the House the way it played out in the House. Meantime on the Senate side, there were two versions being looked at. The Wednesday version and the Thursday version. And one side took one version and the other side took the other version. The Thursday version, we had some help, and I didn't get a chance to review it. So now, it's Friday night, the Senate's voting. They were having their debate and I still had not had a chance to review it. So, I walked over, I was up visiting some senators trying to explain some of the background. So I walked over to the chamber and as I walked into the office just off the chamber, it's the vice president's office, somebody gave me a copy. So I looked at the version and said, 'Can't do it. The same language was back in there.'

Q: What was it?

A: Just let me leave it, not too much detail, there were things with regard to our authorities some language around minimization. So it put us in an untenable position. So then I had another version to take a look at, which was our Wednesday version, which basically was unchanged. So I said, well certainly, I'm going to support that Wednesday version. So that's what I said and the vote happened in the Senate and that was on Friday. So now it rolled to the House on Saturday.

McConnell talks about three bills:

• The House version, which failed as H3356.
• The Thursday Senate version, S2911.
• The Wednesday version, which eventually passed as S1927.

From McConnell's description, we know that he found several things about H3356 unacceptable, probably minimization and some other things. And we know that his primary complaint with S2911 was its requirements on minimization. By comparing what each of these bills require in terms of minimization, we can figure out what was unacceptable to the Administration--and therefore what we can presume they're doing with data on US citizens and permanent residents.

---

H3356

As I understand it, H3356 requires the government to meet existing guidelines on minimization. It has a weakly-worded requirement that the government provide details that allows the FISA judge to "assess the proposed minimization procedures." And it allows--but does not require--the FISA judge to review the minimization procedures of a program.

Here's the analysis:

An application requires the government to provide

a statement of the means by which the electronic surveillance will be effected and such other information about the surveillance techniques to be used as may be necessary to assess the proposed minimization procedures.

It requires the government, in its application for a program, to certify that

the proposed minimization procedures meet the definition of minimization procedures under section 101(h).

And the bill repeats this requirement, later, giving the Attorney General responsibility for ensuring that those minimization procedures are compliant.

MINIMIZATION PROCEDURES- The Attorney General shall ensure that any electronic surveillance conducted pursuant to paragraph (1) or (2) is in accordance with minimization procedures that meet the definition of minimization procedures in section 101(h)

When the FISA judge approves the application, he must

direct[] the applicant to follow the minimization procedures as proposed or as modified by the court.

The House bill gave the FISA judge the power to review the government's compliance with its minimization procedures:

ASSESSMENT OF COMPLIANCE WITH MINIMIZATION PROCEDURES- At or before the end of the period of time for which electronic surveillance is approved by an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.

---

S2011

As I understand it, S2011 requires the government's minimization procedures to meet the requirements of the existing FISA bill. It requires the government to tell the FISC what those minimization procedures are and directs the FISA judge to assess those procedures before approving the order. And it requires the government to tell Congress if it screws up its own minimization procedures.

Here's the analysis:

S2011 emphasizes the importance of minimization in the description of its purpose:

To provide for a procedure before the FISA Court for an order, which may be amended as necessary at the request of the Government with the approval of the Court, authorizing procedures, guidelines, means or methods that will permit the collection of intelligence between foreign persons located outside the United States, while bringing incidental contacts with United States persons at home or abroad into compliance with existing law and minimization procedures. [my emphasis]

It requires the government to certify in its application that its program meets the then-existing minimization requirements of FISA.

the proposed minimization procedures meet the definition of minimization procedures under section 101(h)

And as part of its application, the government must describe its minimization procedures:

MINIMIZATION PROCEDURES- An application for reauthorization of an order issued under this section, shall contain a description of the Government's minimization procedures.

It requires the FISA judge, when reviewing the application, to assess

the minimization procedures to be used with respect to United States persons from such electronic surveillance activity

When the FISA judge issues an order, the judge must,

approve[] the minimization procedures with respect to United States persons [and] direct[] the applicant to follow the procedures referred to in section 105B(b)(1)(B)(i) and the minimization procedures submitted by the Government as approved

And once a quarter, the Administration must report to Congress' Intelligence Committees and report, among other things,

a description of any incidents of non-compliance with respect to minimization procedures and approval requirements concerning U.S. persons;

---

S1927

As I understand it, S1927 (I'm working with the version that passed--I haven't checked whether the requirements for minimization changed in the three versions of the bill)--requires very little in the way of minimization requirements. The government must only certify that its program meets the existing definition of minimization procedures, and that any collection accord with those minimization procedures. There is no requirement that the government reveal its minimization procedures, nor that someone--the judge or Congress--review them.

It requires the government to certify that

the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

It requires any collection of information to meet the Attorney General's minimization procedures.

An acquisition under this section may be conducted only in accordance with the certification of the Director of National Intelligence and the Attorney General, or their oral instructions if time does not permit the preparation of a certification, and the minimization procedures adopted by the Attorney General.[my emphasis]

Comments

[cboldt]

The only change to S.1927 over what was initially filed was one amendment, that being the sunset. (text of bills at this link)

McConnell has a bunch of people chasing "minimization." That's a waste of time. All the bills refer to the same "minimization" process, the difference lies elsewhere.

The differences respecting minimization are, in general:

Who determines the efficacy of the minimization (or, what power does the court have over the snooper in this regard); and the extent, conditions and timing of any court second guessing of the minimization.

McConnell's real objection is to having a court involved in advance of running a surveillance regime where one end of the surveillance is out of the country.

[emptywheel]

I disagree that there's no difference, cboldt.

The bill that passed provides no way to review whether the government met its own minimization procedures, and it provides no means of holding anybody accountable. You may find that negligible. I find it pretty telling.

[cboldt]

Minimization in FISA-1978 and the DEM proposed bills was in an application for court order, and in the resulting court order for surveillance, where the surveillance was apt to pick up the conversation of a person located in the US.

The issue is, obviously I think, that requiring a warrant to obtain conversations where one person is in the US is contra-TSP; TSP is designed to obtain conversations with one end in US, one end out of US, and at least on party terrorist -- all without a warrant. If a warrant is imposed on this TSP activity, then it is an additional burden that was not in place from late 2001 until early 2007.

Minimization in FISA-2007 is merely sent to the FISA Court so they can hold it, under seal, without looking at it. Well, they can look at it, but only if a recipient of a surveillance directive from AGAG/DNI challenges the surveillance directive.

The contents of the minimization rhetoric are substantially the same either way ... the difference is that before FISA-2007, the court ALWAYS had an opportunity to reject the proposed procedure, and that opportunity came earlier in the lifespan of a surveillance regime.

[cboldt]

-- You may find that negligible. --

Clearly, you haven't read the significant amount of posting I've done on the subject. If you had, you would know that I certainly do not find the changes worked by FISA-2007 to be negligible. I've used the term "radical change."

My point is that the radical change isn't in "what's contained in the minimization procedures," which is where people who haven't studied the various incantations of foreign intelligence surveillance statutes are wont to poke around when McConnell says "minimization." The minimization rhetoric is the same all around (always refers to unchanged 1801(h)). The differences worked by FISA-2007 lie in a place other than the contents of minimization.

[emptywheel]

cboldt

Yes, I have read what you've written. I've just done a comparison that lays out distinct differences in the oversight required under the Dem bills and the Republican one.

The difference, to me, is significant--and significant in a way that is a critical part of the difference between old-FISA and new-FISA and the Administrations head fake let FISA play with it until he get cranky with them.

I'm not sure if you're asserting that McConnell is lying to distract us (possible--though these are significant differences in the bills nevertheless), or whether you just happen to think these differences aren't big deals. I do.

[emptywheel]

Or perhaps you're misreading what I wrote here. I've shown the difference in minimization is in the review of it--before and after. You've just said the same thing.

[cboldt]

As long as we're saying the same thing different ways, here is one more on minimization, and one on the "mandatory court review".

Focusing on the -contents- of minimization tends to miss the radical change that FISA-2007 worked.

-- Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5) --

Under the S.1927 protocol, the minimization requirement is a determination of the DNI and AG, "transmitted to the court under seal" and "to remain under seal (not seen by the court) unless the certification is necessary to determine the legality of the acquisition under section 105B"

That challenge would be triggered at 105B(h), if any telco or ISP is nuts enough to buck the system, and even then, the initial court review may find the complaint to be "frivolous" and not open the sealed package.

In contrast, under the previous procedure, "minimization" was critically evaluated by the court. I suspect that minimization deficiencies (in the court's eyes) were the root source of most FISA warrant modifications.
8.10.2007 7:06am

Here's another ...

-- Section 105(C) requires review of the overall procedures by the FISA court --

That is flat out false, or I am seriously reading comprehension impaired. The only review required at 105C can be read therein. Read it.

Sec. 105C. (a) No later than 120 days after the effective date of this Act, the Attorney General shall submit to the Court established under section 103(a), the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The procedures submitted pursuant to this section shall be updated and submitted to the Court on an annual basis. (b) No later than 180 days after the effective date of this Act, the court established under section 103(a) shall assess the Government's determination under section 105B(a)(1) that those procedures are reasonably designed to ensure that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The court's review shall be limited to whether the Government's determination is clearly erroneous.

The only determination that I see in there is for the court to undertake to confirm is "does not constitute electronic surveillance." That's the statutory language.

Maybe you meant a different section says that there is a required review of the overall procedures.
8.10.2007 10:35am

[emptywheel]

I think we are saying the same thing, cboldt.

I'm just tring to pinpoint this, using McConnell's own language, so we can begin to make hay out of it.

And I think I need to add the "under seal" part into my 1927 analysis.

[bmaz]

There is one other aspect that should be kept in mind in this discussion, regardless of which side you take. A warrant issued by a court generally not only means judicial supervision on the front end, i.e. obtaining the warrant; it also contemplates some form of "return" on the warrant if and after the warrant is executed. I do not know what the "return" process in FISC consists of specifically, but there is undoubtedly some process, and that provides a further way for the court to monitor what is being done in the name of the citizenry.

[cboldt]

-- I'm just tring to pinpoint this, using McConnell's own language, so we can begin to make hay out of it. --

McConnell's complaints are apt to lead analysis down a useless path. I.e., he's misdirecting. Although given the imprecision in his statements, I suspect the misdirection is as much an accident as it is deliberate. A bit of both, in other words.

He's one of the people who's tried to transmogrify the complaint into one that is solely rooted in "some judge made a bogus call on foreign-to-foreign," which, while the "foreign to foreign" part is half true, the judge was right, and "foreign to foreign on US switches" is not the only issue the administration had -- and "capturing foreign to foreign on US-based switches" is not just an issue of technology either -- that's another red herring tossed out by the misdirectors.

The administration insists on being able to listen to calls with one end in the US, and to do so without a warrant. Resolving "foreign-to-foreign" doesn't even approach the "one end in US without a warrant" issue -- and one end in the US without a warrant is what the TSP is about.

[cboldt]

-- I think I need to add the "under seal" part into my 1927 analysis. --

The "opened only if the challenge is non-frivolous" should be in there too. I think AGAG/DNI can keep the minimization stuff buried from the court's sight.

One might give more than a passing thought to what constitutes a "frivolous" challenge.

[bmaz]

Well, I don't know about others, but I have no illusions about any challenges being certified by AGSquared to FISC. If there are any, they will be frivolous ones just to say they did it and "Look world FISC said we were clean". The new bill effectively neuters and renders useless the FISC.

[A.L.]

Cboldt, I wouldn't be so quick to dismiss McConnell's statement as an attempt at misdirection. He was speaking off the cuff that's what popped into his head. It may well be significant. And as EW points out, there are key differences between the bills with respect to minimization. It's not about what the standard is; it's about who decides whether it's being followed.

This is a very helpful post, EW. I gives a lot to ponder.

[bmaz]

A.L. Oh both are absolutely critical Constitutionally. Neither element should be minimized. So to speak.

[William Ockham]

I think cboldt is partially correct. The minimization is something of misdirection in that it is not the big thing they objected to in the other versions. Here's my suggestion on how to parse through McConnell's interview. We know that the illegal spying is Cheney's program. We know how Team Cheney operates from the Libby trial [1]. It is highly likely that McConnell was sent out to regurgitate Team Cheney's talking points and he bungled them. The clearest indication of this is the "if you talk about this, Americans will die" line which is quintessential Cheneyism, but McConnell can't pull off. Let's all put on our crit-lit hats and try to reconstruct the talking points document (stamped "Treat as Top Secret/SCI", I'm sure) that is sitting in Cheney's man-size safe. From there, we can start to figure out what McConnell was supposed to be hiding. I'll be back later with my version.

[1] No matter what you think the whole mess was really about, the trial revealed how the OVP operates.

[drational]

EW.
The difference is way more than minimization.
The two failed bills both specified foreign targets as the point of the update.
The passed law permits warrantless wiretapping of all persons communicating with a foreigner, and data mining of all communications that "concern" foreigners.

This means that if you mention Vladimir Putin in an email, your communication can be flagged.
They still have to get a warrant to wiretap you in a traditional manner, but the "acquisition of certain infromation" can now be done on anyone communicating anywhere.

http://www.dailykos.com/story/2007/8/24/74230/9223

[bmaz]

drat - yep. Heh heh. People are starting to catch on to what I started screaming on about the Thursday or Friday before passage. You are marginally new here; but i am usually much more lighthearted than I have been lately. I was a real bear when people first started coming out of the Yearly Kos hangover and have only nominally improved since.

It is worse that what you just said though. Think of how Cheney/Addington interpret things in general. You took it to the logical extreme. They will take it to the illogical extreme. So, you don't even have to mention Putin. If somebody you talk to has mentioned Putin to somebody else previously, that is good enough. That is concerning foreign. Picture Six Degrees of Kevin Bacon. That is how they will interpret this. Wish effectively zero judicial oversight, and Autopen Albertoad Gonzales the caretaker/gatekeeper, there is no one to stop them and no reason to believe they won't do it.

[Garrett]

There is something funky about the timeline for the Senate versions.

McConnell says he sent over three versions, on Monday, Wednesday, and Thursday. I think it works like this:

*The Monday version is H.R. 3356, introduced Friday.
*The Wednesday version is S. 1927, the one that passed, introduced Wednesday.
*The Thursday version is S. 2011, Rockefeller-Levin, introduced Friday.

On Friday afternoon, McConnell issues a statement, support the Thursday version: "I urge Members of Congress to support the legislation I provided last evening." Rockefeller says "He is talking about our bill."

But then, that evening, as the Senate is considering the two bills, McConnell visits the VP's office on the Hill. He comes out saying "Can't do it."

So, for the Rockefeller version: The bill is introduced. McConnell announces he is behind it. He visits the VP office. He then pulls the rug from under it. And he now claims he just hadn't gotten around to reading it.

[lambert strether]

Under Ashcroft, there was a directive that the FBI "shall retain" all records from datamining efforts. ("Shall" is legalese for "do it, this is not optional.")

It would be interesting to know if a similar policy was in place for the NSA.

[occasional observer]

One practical upshot of truncated judicial review under the PAA can be seen through something Just an Observer pointed out about FISA's minimization procedures (in section 1801(h)). (See the thread at Balkinization under "How Many Americans Might Be Under Surveillance?")

Read literally, the procedures have nothing to do with section 1805B (a.k.a. 105B): they relate to "electronic surveillance," which 1805B is not about. Now, as I said in reaction, it would take enormous chutzpah for the AG and DNI to read minimization entirely out of 1805B on this basis, but JaO (rightly, I think) reads FISA-2007 with the jaundiced eye that has produced much that we are now reckoning with (and likely much more we have yet to learn about).

And as he also noted (more tellingly, I think), 1801(h)(4), which implicates FISA warrants, by its terms applies only to (electronic) surveillance under section 1802 (bugging embassies and the like). A mindset that sees minimization as only tangentially related to 1805A/B surveillance would have few if any scruples about reading away warrant requirements on this narrower basis, especially if there is no prospect of judicial review. Thus, it can read the letter as opposed to the spirit of FISA minimization procedures into its surveillance program. This is how I see the interplay between 1805B and 1805C (on scope of review).

Note also that Congress wanted a front-end review of the AG/DNI program, to begin no later than 15 days after enactment, but the PAA back-ends it, to 120 days. This bears on what bmaz said earlier. If no FISA warrants are sought under 1805B, the FISA court will have no occasion to assess minimization through this back door. It may wonder why it is receiving no warrant applications during its three-month wait for something to review, but it will have no occasion to raise a stink. Nor will it at the end of this period given the scope of its review.

How far this takes us from the "clearly erroneous" standard of review shows just how much the general public has to learn about the new law.

Same goes for Congress, since it too is being denied similar information. But that's still another story.

[occasional observer]

Whoops! I meant "four-month wait."

[cboldt]

-- If no FISA warrants are sought under 1805B --

105B is emphatically not a warrant of court order process. Read it again.

Also, the court review of 105C is very limited -- for example, the court review of 105C (if it ever occurs) has absolutely nothing to do with minimization.

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