The United States federal government issued more than 19,000 National Security Letters–perhaps its most powerful tool for domestic intelligence collection–in 2013, and those NSLs contained more than 38,000 individual requests for information.
The new data was released by the Office of the Director of National Intelligence on Friday as part of its effort to comply with a directive from President Obama to declassify and release as much information as possible about a variety of tools that the government uses to collect intelligence. The directive came in the immediate aftermath of the first revelations by former NSA contractor Edward Snowden about the agency’s capabilities, methods and use of legal authorities.
The use of NSLs is far from new, dating back several decades. But their use was expanded greatly after 9/11 and NSLs are different from other tools in a number of ways, perhaps most importantly in the fact that recipients typically are prohibited from even disclosing the fact that they received an NSL. Successfully fighting an NSL is a rare thing, and privacy advocates have been after the government for years to release data on their use of the letters and the number of NSLs issued. Now, the ODNI is putting some of that information into the public record.
There are several different legal authorities under which the FBI can issue an NSL, and the statistics published Friday by the ODNI encompass all of those. The report shows that the FBI served 19,212 National Security Letters in 2013, comprising 38,832 requests for information.
“We are reporting the annual number of requests rather than ‘targets’ for multiple reasons. First, the FBI’s systems are configured to comply with Congressional reporting requirements, which do not require the FBI to track the number of individuals or organizations that are the subject of an NSL,” the report says.
“Even if the FBI systems were configured differently, it would still be difficult to identify the number of specific individuals or organizations that are the subjects of NSLs. One reason for this is that the subscriber information returned to the FBI in response to an NSL may identify, for example, one subscriber for three accounts or it may identify different subscribers for each account. In some cases this occurs because the identification information provided by the subscriber to the provider may not be true.”
Putting the volume of NSLs issued in 2013 into context is a little difficult, as data on the number of the tools issued in previous years is somewhat spotty. Reports from the Office of the Inspector General at the Department of Justice reveal some numbers about the volume of requests, but not the number of NSLs issued. For example, in 2005 the FBI issued 47,221 requests for information via NSLs.
Among the many details disclosed through the publication of documents Snowden took from the NSA was information about the way the agency used Section 702 of the Foreign Intelligence Surveillance Act to gather hundreds of millions of phone records and other data. That provision allows the agency to collect specific records of non-U.S. persons as part of intelligence operations. The NSA gathers these records from service providers, typically telcom companies.
In 2013, the federal government issued just one Section 702 order, but that statistic is a little deceiving. That one order affected 89,128 targets, the DNI’s data shows, and that number, too, may not tell the entire story. In the transparency report, the first of its kinds from the office, the ODNI explains that a “target” could mean one of many different things, depending upon the situation. A target could be one person, a group or a larger organization. And under Section 702, the definition is even less definitive. In those cases, “target” is used as a verb, to mean the act of trying to collect intelligence from a person, group or organization.
“For example, the statutory provisions of Section 702 state that the Government “may not intentionally target any person known at the time of the acquisition to be located in the United States” (emphasis added), among other express limitations,” the report says.
“Under Section 702, the Foreign Intelligence Surveillance Court (FISC) approves Certifications as opposed to individualized orders. Thus, the number of 702 “targets” reflects an estimate of the number of known users of particular facilities (sometimes referred to as selectors) subject to intelligence collection under those Certifications.”