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Recommendation 6: Periodically Assess Upstream Collection
Technology to Ensure that Only Authorized Communications Are

Acquired

Status:

Implemented
Text of the Board’s Recommendation:

To build on current efforts to filter upstream communications to avoid collection of purely
domestic communications, the NSA and DOJ, in consultation with affected

telecommunications service providers, and as appropriate, with independent experts,
should periodically assess whether filtering techniques applied in upstream collection
utilize the best technology consistent with program needs to ensure government
acquisition of only communications that are authorized for collection and prevent the
inadvertent collection of domestic communications.
Explanation for the Recommendation:

Upstream collection involves a greater risk that the government will acquire wholly
domestic communications, which it is not authorized to intentionally collect under Section
702. Ensuring that the upstream collection process comports with statutory limits and with
agency targeting procedures involves an important technical process of filtering out wholly
domestic communications. The government acknowledges, however, that the technical
methods used to prevent the acquisition of domestic communications do not completely
prevent them from being acquired. Even if domestic communications were to constitute a
very small percentage of upstream collection, this could still result in a large overall
number of purely domestic communications being collected. Mindful of these
considerations, the Board believes that there should be an ongoing dialogue, both within
the government and in cooperation with telecommunications providers or independent
experts, to ensure that the means being used to filter for domestic communications use the
best technology. We also believe that the determination about whether this is the case
should be continually revisited.

Discussion of Status:

The NSA conducted a review based upon the Board’s recommendation. The NSA completed
its review and determined that at this time the best technology is being used for filtering.
The NSA has advised the Board that it will periodically review whether the existing study
remains accurate. If technology has changed sufficiently to make the existing study no
longer accurate, the NSA will conduct a new study.

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