> There is a second program called the 702 program. [...] It can only be narrowly related to counter-terrorism, weapons proliferation, cyber hacking or attacks
(e) "Foreign intelligence information" means—
(1) information that relates to, and if concerning a United
States person is necessary to, the ability of the United States
to protect against —
(A) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign
power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of
a foreign power; or PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1785
(2) information with respect to a foreign power or foreign
territory that relates to, and if concerning a United States
person is necessary to—
(A) the national defense or the security of the United
States; or
(B) the conduct of the foreign affairs of the United
States.
Again IANAL, but it seems that just about any possible reason the US could have for going through a non-resident alien's GMail or Dropbox account could be waved through under (e)(2). Lockheed Martin would like to know all your business secrets? Of course this would benefit the national defense of the United States. Annoying EU politician holding out against whatever intellectual-property treaty the US government is pushing this year? Clearly the United States would be aided in the conduct of its foreign affairs by complete surveillance of his email and calendar, maybe even by tipping off some journalists about the affair he is having. (Again, I'm not saying here that anything much like this has happened, just suggesting that the "foreign intelligence information" requirement isn't going to prevent it from happening.)
And it's not even clear to me that the FISC court has any requirement or ability to rule on whether the US government is staying within even this very generous "foreign intelligence information" requirement. On a FISA 702 certification the Government has to 702 (g)(2)(A) "attest that-- [...] '(v) a significant purpose of the acquisition is to obtain foreign intelligence information". Does this give the FISC any ability to inquire into the specifics, or is the government basically on Scout's honour in this?
So I can't see any legal basis on which FAA 702 orders are restricted to being "narrowly related to counter-terrorism, weapons proliferation, cyber hacking or attacks". But I presume Pres. Obama isn't just lying here, so I assume that an executive decision has been made to that effect: that the NSA cube-farm workers who are grinding through routine counter-terrorist surveillance are under orders to so restrict themselves. But that would just be an administrative order, not a law actually binding on the government. So, at some level between the President and the desk-jockeys, the decision could be made at any time to revise or take away that restriction - or just to set it aside ad hoc at any time for any reason. I don't think it's even clear that the boys who handle industrial espionage and the like are covered by this order at all.
A FISA 702 http://www.govtrack.us/congress/bills/110/hr6304/text order (IANAL) authorises "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information". In FISA http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg178... section 101 "foreign intelligence information" is defined thus:
(e) "Foreign intelligence information" means— (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against — (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1785 (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to— (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States.
Again IANAL, but it seems that just about any possible reason the US could have for going through a non-resident alien's GMail or Dropbox account could be waved through under (e)(2). Lockheed Martin would like to know all your business secrets? Of course this would benefit the national defense of the United States. Annoying EU politician holding out against whatever intellectual-property treaty the US government is pushing this year? Clearly the United States would be aided in the conduct of its foreign affairs by complete surveillance of his email and calendar, maybe even by tipping off some journalists about the affair he is having. (Again, I'm not saying here that anything much like this has happened, just suggesting that the "foreign intelligence information" requirement isn't going to prevent it from happening.)
And it's not even clear to me that the FISC court has any requirement or ability to rule on whether the US government is staying within even this very generous "foreign intelligence information" requirement. On a FISA 702 certification the Government has to 702 (g)(2)(A) "attest that-- [...] '(v) a significant purpose of the acquisition is to obtain foreign intelligence information". Does this give the FISC any ability to inquire into the specifics, or is the government basically on Scout's honour in this?
So I can't see any legal basis on which FAA 702 orders are restricted to being "narrowly related to counter-terrorism, weapons proliferation, cyber hacking or attacks". But I presume Pres. Obama isn't just lying here, so I assume that an executive decision has been made to that effect: that the NSA cube-farm workers who are grinding through routine counter-terrorist surveillance are under orders to so restrict themselves. But that would just be an administrative order, not a law actually binding on the government. So, at some level between the President and the desk-jockeys, the decision could be made at any time to revise or take away that restriction - or just to set it aside ad hoc at any time for any reason. I don't think it's even clear that the boys who handle industrial espionage and the like are covered by this order at all.