NSA data shows that 90 percent of people surveilled are innocent Americans whom the agency is legally prohibited from spying upon. Cory Doctorow looks at what the NSA means when it says "targeted."

The review was undertaken by Barton Gellman, Julie Tate and Ashkan Soltani for the Washington Post, working from a cache of previously undisclosed primary surveillance data that Edward Snowden took with him when he left the NSA.

In many cases, it's clear that the NSA has good reason to be concerned about its surveillance targets, but it's also clear that the collateral targets — who far outnumber the first group — have intimate, totally irrelevant information about their lives collected and retained by the spies, where it is routinely accessed by spies, analysts, and private-sector contractors.

Almost everything in the NSA cache is haystack, in other words, with just a few needles. And the hay is deliberately collected and retained, even though it consists of things like love notes, baby pictures, medical records, and other intimate data belonging to people who are under no suspicion at all.

And while foreigners — myself included — are justifiably anxious about the possibility that the NSA faces no legal hurdles to collection of our data, it's significant that the NSA deliberately targets Americans in the USA and abroad. That's because the NSA is legally enjoined from spying on Americans, and the proof that the agency is flouting this prohibition is evidence of illegal activity and strengthens the case for more oversight, reform and intervention from the US Congress.

The NSA uses laughably sloppy tools for deciding whether a target is a "US person" (a person in the USA, or an American citizen abroad). For example, people whose address books contain foreign persons are presumed by some analysts to be foreign. Likewise, people who post in "foreign" languages (the US has no official state language) are presumed by some analysts to be non-US persons.

When the NSA does determine that it is intercepting US persons' communications, it is required to take "minimization" steps on any data it retains. However, many of these minimization steps are likewise laughably inadequate — for example, in early 2009, the files refer to "minimized U.S. president-elect," rather than Barack Obama, but you hardly need be a surveillance mastermind to make sense of this.

The documents reveal how the controversial "section 702" of the Foreign Intelligence Surveillance Act has become the go-to basis for surveillance, 702 further lowers the bar for conducting surveillance from the already generous height at which it had been previously set. In the cache, the Post reporters see evidence that analysts whose judicial surveillance authorization warrants have expired then switch to 702 as their basis for continuing spying, rather than demonstrating to a judge that their cause is good.

Snowden says he released this cache to the Washington Post to better inform the debate about 702. The NSA's allies in Congress talk about 702 as something used in special cases and with due care. But it's clear from these documents that 702 is a legal back-door that lets spies avoid the very generous and casual oversight of the FISA court, a veritable rubberstamp factory that grants virtually every NSA request.

Last week's revelations about the NSA's "targeted" surveillance program showed us that NSA wordsmithing has distorted the word "targeted" beyond all recognition, but that was about a largely automated system that spied on people based on stupid, automated rules (albeit rules that a human being had created and put in place).

In this story, we see that even when a trained NSA analyst is making individual, case-by-case decisions about which people to target, s/he can be expected to get it wrong nine times out of ten.

Nice shooting, Tex.

-Cory Doctorow

In NSA-intercepted data, those not targeted far outnumber the foreigners who are [Barton Gellman, Julie Tate and Ashkan Soltani/Washington Post]

(Image: Archery, Vassilis, CC-BY-SA)