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FBI channels Kafka with new rules on slurping Americans' private data

Feds have changed the way they use info from the NSA but can't say how or why

Visions of a legal nightmare ... Franz Kafka

Comment The murky world of surveillance turned a little more Kafkaesque this week. The FBI has quietly changed the rules on how it uses data collected by the NSA under Section 702 of the Foreign Intelligence Surveillance Act.

Section 702 has been used by the NSA to justify its PRISM program, which collects personal information and the communications of foreigners – and the Americans who interact with them – from the servers of commercial companies like Apple, Microsoft and Google.

The existence of PRISM was revealed by NSA whistleblower Edward Snowden in one of his first leaks, and caused red faces among tech bosses, some of whom still deny they are participating in the scheme. Subsequent leaks showed that the FBI has been given unfettered access to the PRISM data store.

An investigation by The Guardian found out that the rules by which the FBI can use the material in the database have been secretly altered on the recommendations of the Privacy and Civil Liberties Oversight Board (PCLOB), a privacy-focused agency set up in 2004 to keep an eye on law enforcement's use of surveillance technologies.

"Changes have been implemented based on PCLOB recommendations, but we cannot comment further due to classification," said Christopher Allen, a spokesman for the FBI this week. A spokesman for the office of the director of national intelligence also confirmed the rule changes.

It's a situation Kafka's Josef K and his detainers Willem and Franz in The Trial would be very familiar with. The rules guarding our privacy have been changed, but we're not allowed to know what is different because of privacy.

Before everyone starts panicking, it is possible that the rules governing the FBI's use of Section 702 data have actually been tightened, rather than loosened. PCLOB spokeswoman Sharon Bradford Franklin claimed the new rules enhance privacy, stating that "they do apply additional limits."

We're going to have to take her word for it, because such things must be kept secret for security purposes. It's to be hoped that the FBI is being made to use the NSA's data more securely, but we really have no way of knowing. ®

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