New enhanced privacy rules for the FBI’s use of NSA data

images-1According to a source, the Federal Bureau of Investigation (FBI) has revised its privacy rules on dealing with data that it receives from the National Security Agency (NSA) regarding Americans’ international communications (international emails, texts and phone calls). This is the so called “Section 702 data” because it is collected by the NSA under the powers granted to NSA by Section 702 of Foreign Intelligence Surveillance Act of 1978 (FISA); those powers will expire in 2017.

The problem with FBI’s access and use of that data is that the Bureau is known to have a too easy access to American’s identifying information and to use it also for non-national security investigations. Minimization rule (i.e., deletion of personal identifiable information when not necessary) was also underutilized. At least as of 2014 (but perhaps also in 2015), there was no requirement for the FBI to record the searches for metadata in an email or how many searches involve Americans’ identifying information.

Concerns have been expressed by many on these practices (seen as a backdoor that the Bureau enjoys for warrantless searches), including by the Privacy and Civil Liberties Oversight Group (PCLOB), a government civil liberties watchdog, which in its new compliance report released on 5 February, in particular recommended more safeguards in the use of American’s information for “non-foreign intelligence criminal matters”.

The FBI’s revision of its practice is expected to have taken into account the criticism. Christopher Allen, a spokesman for the FBI declared that “Changes have been implemented based on PCLOB recommendations, but we cannot comment further due to classification.” A spokesperson for the office of the director of national intelligence also confirmed the privacy enhancing changes, especially to the minimization rule. Another changes that was passed, according to the comments released is supervisory approval to access query results in certain circumstances will be required (this would make you think that no court approval will be necessary).

The so called “secret court” (United States Foreign Intelligence Surveillance Court – FISC or FISA Court), accepted the FBI’s revisions to its privacy rules at its annual re-certification of surveillance powers of agencies. The “secret court” is the federal court — consisting of eleven judges appointed by the U.S. Supreme Court Chief Justice and housed in a windowless area of the US District Court in DC – was established under the Foreign Intelligence Surveillance Act of 1978 (FISA) and has competence on surveillance issues.

For more information, Francesca Giannoni-Crystal