NSA will be allowed to keep illegally acquired data

This is long but I recommend reading it all, as Marcy is one of the best writers at really getting into the nitty-gritty of the FISC decisions and is often knowledgeable enough to infer the redactions. LINK

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Not long after the announcement, the government released documents explaining why it had dropped this kind of collection, which it calls "about" collection. Those documents amounted to a confession that the NSA failed to follow rules the Foreign Intelligence Surveillance Court put in place in 2011 to ensure upstream collection complied with the Fourth Amendment.

There was a stink, at the time, accusing the Obama Administration of using Section 702 of FISA—which only permits the government to target foreigners—of using it to spy on Americans for five years. Those accusations were, technically, true (the NSA attributed such spying to technical failures, not legal ones). But the truth is far more troubling. In fact, from 2004 to 2016, the NSA was always engaging in collection the FISC would go on to deem unauthorized. For 12 years, under both the Bush and Obama Administrations, the NSA was collecting information that, if retained, would break the law.

But under the current presiding judge, overseeing the plans of the Trump Administration, NSA will be allowed to keep such data, a change from her three predecessors.

In adopting the solution to the "about" problem pitched by the Trump Administration, FISC presiding judge Rosemary Collyer, the latest judge to deal with such violations, did less than her predecessors to ensure that such violations don't cause ongoing privacy violations. Not only did she stop short of ensuring that FISA remains the "exclusive means" to conduct surveillance, she allowed the government to keep data it got by breaking the rules.

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For one tool used to do back door searches on Americans targeted by individual FISA warrants who were located overseas, 85% of queries were not compliant, often because they targeted those people for periods when spying wasn't authorized by a FISA warrant, as the FISA Amendments Act requires they be. In addition, over the course of six months of review, the NSA couldn't even find all the places it had stored upstream content that might have been improperly switched.

So at the end of that six month period (this brings us to April 2017), Collyer approved a proposal offered by Trump's appointees she claimed was a fix. Rather than prohibiting back door searches of content known to include entirely domestic communications, the NSA would just stop doing the most problematic kind of upstream collection, the "about" collection that can result in bundled communications including entirely unrelated communications. With that change, Collyer for the first time approved back door searches on upstream collection, without even consulting an amicus, which was arguably required by the USA Freedom Act, a 2015 law that required the court to explain why it didn't use an amicus when considering significant issues.

But that fix clearly doesn't solve the problem of NSA accessing domestic communications with its newly expanded back door searches. "It will still be possible," Collyer admitted, "for the NSA to acquire [a bundled communication] that contains a domestic communication." (It's not clear, at all, from Collyer's opinion whether she understands that single communications may also be entirely domestic.)

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This is also why I won't shed a tear if Trump ends up getting nailed because of SIGINT. His people are expanding that power rather than curtailing it. Whining about the IC on Twitter is therefore just a cheap bit of theater for his diehards.