Privacy SOS

Raw Take: When “minimize” means “do whatever you want”

The latest disclosure from the Edward Snowden documents is a bombshell. Putting the lie to guarantees that NSA and FBI officials go to great lengths to “minimize” information they “inadvertently” collect about Americans, the New York Times report describes how a long-secret FISA court decision called—not joking—the “Raw Take” “weakened restrictions on sharing private information about Americans.”

Here's the significance of this story in plain English: The defenders of the NSA and FBI, when dragged before the public to account for their actions in the wake of the Snowden leaks, routinely fall back on claims that, even if they sometimes/maybe/accidentally collect Americans' communications, they are very responsible and good and always make sure to get rid of (or "minimize") that information. Turns out, like so many other things the spies say, that's simply false.

From 9/11 to Raw Take to Large Content

Like so many other terrible trends in law and civil liberties, the Raw Take order finds its genesis in President Bush's aggressive response to the 9/11 attacks. Shortly after the attacks, Bush pushed the court to give spies more leeway to do what they wanted with the information the spies collected. Charlie Savage and Laura Poitras explain that before the order,

with narrow exceptions, an intelligence agency was permitted to disseminate information gathered from court-approved wiretaps only after deleting irrelevant private details and masking the names of innocent Americans who came into contract with a terrorism suspect. The Raw Take order significantly changed that system, documents show, allowing counterterrorism analysts at the NSA, the FBI, and the CIA to share unfiltered personal information.

After the Bush administration’s warrantless wiretapping program was “legalized” in 2007, the FISA court “allowed raw sharing of personal information from” that surveillance, too, Savage and Poitras write. The gloves had come off, and contrary to what officials say in public to this very day, the expanded powers were often aimed at broadening the government's ability to spy on Americans accused of no crime—not the people suspected of having bombed New York and Washington in 2001.

Worse still, the Times report describes another secret FISA court decision, referred to as “Large Content FISA”, which authorized “sweeping but short-lived orders issued on Jan. 10, 2007, that authorized the Bush administration to continue its warrantless wiretapping program” even after journalist James Risen disclosed it to an outraged public.

Today, the government doesn’t need to rely on Large Content FISA in order to suck up vast quantities of Americans’ communications without warrants. When congress passed the Barack Obama-approved FISA Amendments Act in 2008, it granted US spies broad authority to conduct warrantless surveillance as long as they are 51% sure that one end of the communication is foreign. And now we know that access to our communications collected under this unconstitutional statute is much more of a free-for-all than officials have let on.

Why does any of this matter? The New York Times explains:

Congress had enacted FISA after revelations about decades of abuses of surveillance undertaken in the name of national security—like the FBI’s taping of the Rev. Dr. Martin Luther King Jr.’s extramarital affairs and its sharing of the information with the Kennedy White House. The law required agencies to “minimize” private information about Americans—deleting data that is irrelevant for intelligence purposes before providing it to others.

In the post-9/11 climate, the Bush Justice Department correctly saw an opening that would enable them to destroy those old rules, in secret. Among other things, the administration argued to the FISA court that where “counterintelligence and counterterrorism” are concerned, spies and analysts needed much broader authority. Tragically, as if setting the tone for the next decade plus whenever the government utters the word “Terror” to judges, the court agreed.

Trust us! Would we lie?

When approached for comment on this story, officials told the Times that we shouldn’t worry about these revelations because "only trained analysts with a need to see the raw information may access it."

Are those the same trained analysts who used their NSA access to query information about their romantic interests? Are those the analysts whose clearances were approved by a private firm that appears to have put profit before ethics, and is alleged to have performed nearly 700k bad security checks? Are they the same analysts who work for an institution that has operated a network of secret prisons, where their colleagues tortured people who had been kidnapped, drugged, blindfolded, and put into diapers by men dressed in all black, wearing ski masks? Are these the same analysts who today work side by side with CIA operatives who just got caught spying on congressional investigators who were digging into those very torture programs, and who hid evidence from the investigators, lied about it, and then fabricated a story to justify the impropriety that they were still denying took place?

The US "intelligence community" has a very bad habit of lying to the public about matters of grave importance. Why on earth should we trust them?

The ACLU’s Jameel Jaffer identifies the stench coming from the national security establishment: deceit. "It seems that at the same time the government has been touting the minimization requirements to the public, it’s been trying behind closed doors to weaken those requirements," Jaffer told the Times.

Alphabet soup: It's much bigger than the NSA

So what’s the state of affairs today, with respect to Raw Take and Large Content? It's very bad. Not only is much of the raw data collected by NSA shared with the CIA and FBI, an agency with a bad habit of obsessively spying on people because of their political views and religion. Since 2012, the Times reports, this raw surveillance data has also been shared with the CIA’s domestic surveillance and information sharing operation, the National Counterterrorism Center. (If you want to learn a little bit about why that's terrifying, read this, this, this, and this.)

Some commentators with ties to the surveillance state have scoffed at Snowden’s remarks about how he, sitting from his desk in Hawaii, could wiretap the president, or any other American. Large Content and Raw Take provide yet more support for those claims.

This week the Senate select intelligence committee is awfully busy being publicly upset with the CIA for spying on them and trying to block access to information about secret CIA torture programs. Let’s hope some of Dianne Feinstein’s rage spills over into Raw Take territory.

It shouldn't be possible for the most powerful public figures in the country to routinely get away with lying to the public, particularly when the most vital issues at the heart of democratic society hang in the balance. Unfortunately, the past few months have shown that this kind of abject corruption is totally possible—as long as powerful people like Dianne Feinstein aren't in the crosshairs.

© 2021 ACLU of Massachusetts.