Revealed: the top secret rules that allow NSA to use US data without a warrant

[Catherina]

93. "exceptionally grave damage" v "serious damage" if made public and means of collection

It's the difference between "exceptionally grave damage" to national security if made publicly available and "serious damage".
These documents are purely administrative and everything in them is either secret or unclassified except for one small part in Exhibit A.

This is the only thing in Exhibit A that's Top Secret. Notice that all of it is NoForn (No Foreigners) and restricted (SI)

Information contained in various NSA-maintained knowledge databases containing
foreign intelligence information acquired by any lawful means, such as electronic
surveillance, physical search, or the use of a pen register and trap or trace device, or
other information, reveals that the telephone number has been previously used by an
individual associated with a foreign power or foreign territory;

(TS//SI//NF) The NSA knowledge databases that would be used to satisfy this factor contain fused intelligence information concerning international terrorism culled from signals intelligence, human intelligence, law enforcement information and other sources. The information compiled in these databases is information that assists the signals intelligence system in effecting collection on intelligence targets. For example, a report produced by the CIA may include a fact that a known terrorist is using a telephone with a particular number. NSA would include that information in its knowledge in its knowledge databases.

I'm pretty sure it's because of the reference to means of collection, the pen registers & trap and trace devices. Both Bush and Obama had a lot of legal problems over the use of pen registers & trap and trace devices because they violate Federal law. They record information on all incoming and outgoing calls for a particular data line. These are what NSA was using to siphon "e-mail metadata and technical records of Skype calls from data links owned by AT&T, Sprint and MCI, which later merged with Verizon". There's speculation that it was over these that Goldsmith/Comey threatened to resign under Bush. Orin Kerr of Washington University Law Dept wrote something up about that here.

That's also the only place in the document were they mention the fused intelligence database which contains intelligence from multiple agencies within the Intelligence Community.

The ACLU has been very hot about the increasing use of pen registers & trap and trace devices and the DOJ repeatedly denied that they were using these without a warrant or in any inappropriate manner.

...

Federal law enforcement agents misled judges for years on what type of wiretaps they were carrying out when they requested permission for so-called “pen register” searches, an email obtained by the American Civil Liberties Union (ACLU) reveals.

Instead of collecting data on incoming and outgoing callers (among other general information), as “pen register” searches are intended to do, the ACLU said that agents commonly used a vehicle-mounted technology called the “stingray” that intercepts all nearby communications in order to pinpoint the location of a particular signal. The ACLU argues that these devices in effect resulted in a de facto wiretap, when that was not yet authorized.

A Freedom of Information Act Request (FOIA) filed by the ACLU returned a revealing email about the use of “stingrays” in law enforcement, showing the office of the United States Attorney for the Northern District of California warning agents to be more specific about the type of technology employed in pen register requests.

“As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity) to locate an individual,” the email explained. “It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.”

“While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates,” the email concludes.

“In other words, the federal government was routinely using stingray technology in the field, but failing to ‘make that explicit’ in its applications to the court to engage in electronic surveillance,” ACLU staff attorney Linda Lye wrote in an advisory. “When the magistrate judges in the Northern District of California finally found out what was happening, they expressed ‘collective concerns,’ according to the emails.”

...

http://www.rawstory.com/rs/2013/03/28/aclu-email-reveals-feds-misled-judges-to-abuse-wiretapping-powers/

And this just in, press release from the ACLU, is part of the serious damage

NSA Claims Broad Authority to Monitor Americans' International Calls and Emails

Agency Retains Purely Domestic Communications Without Warrants, Documents Show

June 20, 2013

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, [e-mail]

NEW YORK – The government is engaged in warrantless surveillance of innocent Americans' international communications, according to secret FISA Court documents released today by The Guardian. Jameel Jaffer, American Civil Liberties Union deputy legal director, made the following comments about the latest revelations:

"After Congress enacted the FISA Amendments Act in 2008, we worried that the NSA would use the new authority to conduct warrantless surveillance of Americans' telephone calls and emails. These documents confirm many of our worst fears. The 'targeting' procedures indicate that the NSA is engaged in broad surveillance of Americans' international communications.

"The 'minimization' procedures that supposedly protect Americans' constitutional rights turn out to be far weaker than we imagined they could be. For example, the NSA claims the authority to collect and disseminate attorney-client communications – and even, in some circumstances, to turn them over to Justice Department prosecutors. The government also claims the authority to retain Americans' purely domestic communications in certain situations."

ACLU Staff Attorney Alex Abdo said:

"Collectively, these documents show indisputably that the legal framework under which the NSA operates is far too feeble, that existing oversight mechanisms are ineffective, and that the government's surveillance policies now present a serious and ongoing threat to our constitutional rights. The release of these documents will help inform a crucial public debate that should have taken place years ago."

http://www.aclu.org/national-security/nsa-claims-broad-authority-monitor-americans-international-calls-and-emails

This is something where we'll need to trust the ACLU and not any of the self-annointed legal experts telling everyone to move on, nothing to see here, it's all legal.