Page 24 - AssessmentReport

Text of the Board’s Recommendation:

The government should implement five measures to provide insight about the extent to
which the NSA acquires and utilizes the communications involving U.S. persons and people
located in the United States under the Section 702 program. Specifically, the NSA should
implement processes to annually count the following: (1) the number of telephone
communications acquired in which one caller is located in the United States; (2) the
number of Internet communications acquired through upstream collection that originate or
terminate in the United States; (3) the number of communications of or concerning U.S.
persons that the NSA positively identifies as such in the routine course of its work; (4) the
number of queries performed that employ U.S. person identifiers, specifically
distinguishing the number of such queries that include names, titles, or other identifiers
potentially associated with individuals; and (5) the number of instances in which the NSA
disseminates non-public information about U.S. persons, specifically distinguishing
disseminations that includes names, titles, or other identifiers potentially associated with
individuals. These figures should be reported to Congress in the NSA Director’s annual
report and should be released publicly to the extent consistent with national security.

Explanation for the Recommendation:

Since the enactment of the FISA Amendments Act in 2008, the extent to which the
government incidentally acquires the communications of U.S. persons under Section 702
has been one of the biggest open questions about the program, and a continuing source of
public concern. The executive branch has maintained that it cannot provide such a number
— because it is often difficult to determine from a communication the nationality of its
participants, and because the large volume of collection under Section 702 would make it
impossible to conduct such determinations for every communication that is acquired. The
executive branch also has pointed out that any attempt to document the nationality of
participants to communications acquired under Section 702 would actually be invasive of
privacy, because it would require government personnel to spend time scrutinizing the
contents of private messages that they otherwise might never access or closely review.

As a result of this impasse, lawmakers and the public do not have even a rough estimate of
how many communications of U.S. persons are acquired under Section 702. Based on
information provided by the NSA, the Board believes that certain measures can be adopted
that could provide insight into these questions without unduly burdening the NSA or
disrupting the work of its analysts, and without requiring the agency to further scrutinize
the contents of U.S. persons’ communications. We believe that the NSA could implement
five measures, listed above, that collectively would shed some light on the extent to which
communications involving U.S. persons or people located in the United States are being
acquired and utilized under Section 702.

24