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Recommendation 7: Examine the Technical Feasibility of Limiting
Particular Types of “About” Collection

Status:

Implemented

Text of the Board’s Recommendation:

The NSA periodically should review the types of communications acquired through “about”
collection under Section 702, and study the extent to which it would be technically feasible
to limit, as appropriate, the types of “about” collection.

Explanation for the Recommendation:

In the upstream collection process, the NSA acquires not only Internet communications
sent to and from the selector, such as an email address, used by a targeted person, but also
communications that simply contain reference to the selector, sometimes in the body of the
communication. These are termed “about” communications, because they are not to or
from, but rather “about” the communication selectors of targeted persons. In addition, for
technical reasons, “about” collection is needed even to acquire some communications that
actually are to or from a target. Other types of “about” collection can result in the
acquisition of communications between two non-targets, thereby implicating greater
privacy concerns. Moreover, the permissible scope of targeting in the Section 702 program
is broad enough that targets need not themselves be suspected terrorists or other bad
actors. Thus, if the email address of a target appears in the body of a communication
between two non-targets, it does not necessarily mean that either of the communicants is
in touch with a suspected terrorist.

While “about” collection is valued by the government for its unique intelligence benefits, it
is, to a large degree, an inevitable byproduct of the way the NSA conducts much of its
upstream collection. At least some forms of “about” collection present novel and difficult
issues regarding the balance between privacy and national security. But current
technological limits make any debate about the proper balance somewhat academic,
because it is largely unfeasible to limit “about” collection without also eliminating a
substantial portion of upstream’s “to/from” collection, which would more drastically
hinder the government’s counterterrorism efforts. We therefore recommend that the NSA
work to develop technology that would enable it to identify and distinguish among the
types of “about” collection at the acquisition stage, and then selectively limit or modify its
“about” collection, as may later be deemed appropriate.

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