If the Executive Had Followed Clear Minimization Requirements of PATRIOT, Dragnet Abuses Might Have Been Avoided
For 4 years, it has been clear that DOJ Inspector General Glenn Fine used his 2008 report on the FBI’s use of Section 215 to address how it had been used for what was then a secret program. For that reason, I want to look more closely at what he had to say about minimization.
Glenn Fine reveals how FBI minimization procedures are self-referential nonsense
As I noted, as part of a congressionally-mandated review completed in March 2008, DOJ’s Inspector General Glenn Fine reviewed whether DOJ had complied with PATRIOT Reauthorization’s requirement that the Attorney General craft minimization procedures to use with Section 215 collection.
He described how, in advance of a September 5, 2006 deadline, two parts of DOJ squabbled over what the minimization procedures should be.
Several months after enactment of the Reauthorization Act, the Office of Intelligence Policy and Review (OIPR) and the FBI — both of whom had been developing minimization procedures related to Section 215 orders — exchanged draft procedures. The drafts differed in fundamental respects, ranging from definitions to the scope of the procedures.
The fight seems to have been significantly fought between OIPR’s Counsel James Baker (who had a record of trying to get DOJ to follow the law) and FBI’s General Counsel Valerie Caproni (who got confirmed as a Federal Judge for NY this year literally at the same moment the Administration started releasing the most damning details on the dragnet).
Unresolved issues included the time period for retention of information, definitional issues of “U.S. person identifying information,” and whether to include procedures for addressing material received in response to, but beyond the scope of, the FISA Court order; uploading information into FBI databases; and handling large or sensitive data collections.
A couple of months would put this debate squarely in the time period when the first dragnet order would be signed (two months would be May 9; the first order was signed May 24).
And you can see how these issues would go squarely to the heart of whether or not the government could use Section 215 to authorize the dragnet. The dragnet introduces immediate retention issues, given that it authorizes collection on data not yet in existence; imagine if OIPR mandated an immediate search, with all non-responsive numbers to be destroyed. NSA itself treated phone numbers as “identifiers,” and yet this entire program fails to meet the most basic dissemination limits if you treat them as identifiers here. We know NSA had recurrent problem with receiving data that was beyond the scope, including credit card numbers and international data. Unloading this into the FBI database presents immense problems, given that the foreign intelligence value of a query is based on a algorithm, not more concrete evidence. And of course, Fine’s mention of the debate over “handling large or sensitive data collections” must implicate the dragnet, which is the quintessential large and sensitive data collection.
Almost the entirety of the detailed discussion of these issues is redacted.