After major companies like Google and Facebook urged the government to allow them to release more specific transparency reports on NSA spying requests, the U.S government will instead deliver its own transparency report, and it will provide only some of the information tech companies want to disclose. The first of such breakdowns will come in "the late fall," a source told The Washington Post's Brian Fung. But, in a post on the NSA's Tumblr on Thursday night, Director of National Intelligence James Clapper detailed what the forthcoming report will look like:
Specifically, for each of the following categories of national security authorities, the IC will release the total number of orders issued during the prior twelve-month period, and the number of targets affected by these orders:
- FISA orders based on probable cause ( Titles I and III of FISA, and sections 703 and 704).
- Section 702 of FISA
- FISA Business Records (Title V of FISA).
- FISA Pen Register/Trap and Trace ( Title IV of FISA)
- National Security Letters issued pursuant to 12 U.S.C. § 3414(a)(5), 15 U.S.C. §§ 1681u(a) and (b), 15 U.S.C. § 1681v, and 18 U.S.C. § 2709.
The most enlightening information will come out of the "Section 702 of FISA" (Foreign Intelligence Surveillance Act) orders, which includes PRISM and other Internet data collection programs that have led to at least 56,000 incidents of domestic spying on Americans through e-mail, as detailed in FISA documents released last week.
Section 702 spying is the data collection tech companies want to detail, but so far they haven't been able to because of gag orders. As of now, transparency reports from participating tech companies bundle all government data requests from all agencies. This is the first time we will get a separate number for FISA requests, which is almost exactly what Silicon Valley has asked to do itself.
The DNI's breakdown of requests, however, will still somewhat obscure the information, as it won't detail the specifics of which tech company the requests are going through. Google and Microsoft want to breakdown how many NSA requests went to their specific companies. The DNI report will aggregate that information into one lump of total tech requests. We still won't know how many FISA requests Google received, but how many FISA orders went through tech companies, in total.
Also notably missing from the transparency report is the mass metadata collection from phone companies, which is covered under Section 215 of the Patriot Act. Perhaps that's because we already know that the NSA has access to every single person's phone record — a report would be moot.
Per usual, the government is leaning on national security to justify its opacity: "Our ability to discuss these activities is limited by our need to protect intelligence sources and methods," Clapper said.