Sunday, July 14, 2013

Surveillance and Minimization Procedures

One thing that gets talked about a lot during the debate on surveillance are minimization procedures.  What are minimization procedures.  This is not something I know anything about, except what comes from court cases.  Roughly speaking, though, even a completely legitimate wiretap will collect innocent information.  Minimization procedures come in two kinds:  Stopping the collection of data once it becomes clear that it is innocent, and getting rid of the innocent material that is invariable swept in.

In re Sealed Case No. 02-001, the only FISA opinion currently on public record, explains both types:
[M]inimization procedures are designed to protect, as far as reasonable, against the acquisition, retention, and dissemination of nonpublic information which is not foreign intelligence information. If the data is not foreign intelligence information as defined by the statute, the procedures are to ensure that the government does not use the information to identify the target or third party, unless such identification is necessary to properly understand or assess the foreign intelligence information that is collected. Id. § 1801(h)(2). By minimizing acquisition, Congress envisioned that, for example, “where a switchboard line is tapped but only one person in the organization is the target, the interception should probably be discontinued where the target is not a party” to the communication. H. REP. at 55-56. By minimizing retention, Congress intended that “information acquired, which is not necessary for obtaining[,] producing, or disseminating foreign intelligence information, be destroyed where feasible.” H. REP. at 56.
Zweibon v. Mitchell is a fine example of why minimization procedures are needed.  Mitchell in this case refers to Richard Nixon's Attorney General.  The case involved the Jewish Defense League, an organization widely known as a right wing terrorist group.  It appears to have begun as something between a neighborhood watch and a vigilante organization* in the late 1960's, when black crime rates were surging and white flight was in full force.  Upper middle class Jews moved to the suburbs, working class and Orthodox Jews, who could not afford to move, were frequent victims of black crime.  It moved beyond mere defense to outright racism.  In the 1970's, it became a champion of Soviet Jews denied visas to move to Israel.**  Much of its activity was lawful -- anti-Soviet protests, demonstrations, and carrying signs.  But it also engaged in numerous acts of terrorism against Soviet diplomatic facilities, airlines, and even the Bolshoi Ballet.  Their activities jeopardized Nixon's policies of detente with the Soviet Union.  The Soviets did not always make the distinction between lawful picketing and unlawful acts of violence; they just wanted the whole thing to stop.  Clearly, then, since the Jewish Defense League was practicing terrorism that affected our foreign relations, wiretapping some of its activities was appropriate.  But at the time it has approximately 15,000 members, most of whom were not involved with terrorism and conducted a great deal of lawful business.  What was called for, then were strict minimization procedures.  While it might be acceptable at first to listen in to its conversations in general, the government should be required to determine which connections were likely to lead to actual terrorism and which were not, and to stop listening in to the innocent ones and discard all such information.  The temptation, since even the League's lawful activities were a foreign policy headache, was to listen in to everything.

This should also provide some guidance on sifting through metadata.  Since sifting through metadata more or less by definition involves sweeping in a great deal of innocent information, everything but specific patterns of metadata involving actual terrorists (or spies) should be discarded and destroyed.

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*A distinction not always as clear as one might wish.
**Just to make clear, at the time Zionists wishing to move to Israel were a distinct minority among Soviet Jews.  Most were highly assimilated and had no desire to leave the only home they had.  Nonetheless, Soviet mistreatment of Jews who did wish to move to Israel was inexcusable.

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