United States intelligence officials have been scouring the personal communications of innocent Americans, the nation’s top spy chief now acknowledges, using a procedure that’s allegedly lawful and constitutionally sound.
Director of National Intelligence James Clapper admitted as much in a letter sent last week to US Senator Ron Wyden (D-Oregon), who two months ago was promised an answer by the DNI during a heated discussion on the floor of Congress about what the National Security Agency can and cannot do.
The debate between Wyden and the country’s top intelligence officer began much earlier than that, though, and Clapper’s latest acknowledgement comes nine months after the NSA insisted Americans needn’t worry about being targeted by the US government’s vast surveillance apparatus.
March 12, 2013
Since the George W. Bush administration, the Foreign Intelligence Surveillance Act has provided the American government with the ability to collect communications sent to or from any non US-persons located abroad, and Sen. Wyden has been one of the most adamant critics of that authority since even before the first Snowden leaks surfaced last June. Practically one year before the NSA leaker became a household name, in fact, Sen. Wyden asked the Inspector General of the Intelligence Community for details on how many Americans have been targeted by the NSA since Section 702 of the FISA Amendments Act was approved in 2008 and the NSA began to sweep up the online and over-the-phone activities of Americans engaged in conversation with persons located outside of the country.
“If no one will even estimate how many Americans have had their communications collected under this law then it is all the more important that Congress act to close the ‘back door searches’ loophole, to keep the government from searching for Americans’ phone calls and emails without a warrant,” Wyden told Wired’s Danger Room back in June 2012.
When the first Snowden leaks began one year to the month later, the NSA issued a “fact sheet” that said Section 702 authority “allows only the targeting, for foreign intelligence purposes, of communications of foreign persons who are located abroad.”
“The government may not target any US person anywhere in the world under this authority, nor may it target a person outside of the US if the purpose is to acquire information from a particular, known person inside the US,” the memorandum continued.
Even then, however, Wyden wasn’t satisfied. “We were disappointed to see that this fact sheet contains an inaccurate statement about how the Section 702 authority has been interpreted by the US government,” he wrote in a joint letter to then-NSA Director Gen. Keith Alexander sent last June along with the signature of Sen. Mark Udall. “In our judgment this inaccuracy is significant, as it portrays protections for Americans’ privacy as being significantly stronger than they actually are.”
As the NSA leaks continued to drip, last August Mr. Snowden supplied The Guardian newspaper with cold hard proof that reaffirmed Sen. Wyden’s worries.
“The National Security Agency has a secret backdoor into its vast databases under a legal authority enabling it to search for US citizens’ email and phone calls without a warrant,” journalists James Ball and Spencer Ackerman wrote for the paper last August after seeing a secret NSA document supplied to them by Snowden.
When Clapper testified before Congress earlier this year, Wyden once more insisted on getting a straight answer out of the intelligence community’s top officer. During a January 29 intelligence hearing on worldwide threats, Wyden asked Clapper if the NSA has ever conducted “warrantless searches” on the information contained in those databases by using “specific” Americans’ identifying information to conduct those queries.
January 29, 2014
At the time, Clapper said he’d prefer not to discuss the matter in the midst of the hearing and would instead issue a declassified answer within 30 days. That official response, albeit delayed, was sent to the senator’s office last Friday, and reaffirmed what Snowden said all along.
“There have been queries, using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States,” Clapper wrote to Wyden. “These queries were performed pursuant to minimization procedures approved by the FISA court and consistent with the statute and the Fourth Amendment.”
In a nutshell, that means that the US government has interpreted FISA in a way that allows the NSA to collect the emails and phones calls of Americans — as long as at least one of the parties involved is a foreigner located abroad — and then query that data by keying in search terms specific to the US citizen: a “backdoor search loophole” that Sen. Wyden said must be fixed during an interview over the weekend on the NBC program “Meet the Press.”
“What this is,” Wyden said, “is this allows the government to look at the emails of law-abiding Americans. That needs to be fixed. And then, I believe strongly we ought to ban all dragnet surveillance on law-abiding Americans; not just phone records, but also medical records, purchases and others.”
“What the government has been doing is running a federal human relations database,” Wyden alleged. “When the government has the information about who you called, when you called, they know a lot about your private life.”
In that same interview, Sen. Wyden also called on Congress to heed President Barack Obama’s recent suggestion and draft legislation that will abolish the NSA’s current practice of collecting the telephony metadata pertaining to millions of Americans on a daily basis. In the meantime, though, Wyden said that the intelligence community could use an “upgrade” with regards to leadership — and particularly DNI Clapper.
Many of the NSA’s most controversial programs collect information under the law affected by the so-called loophole. These include PRISM, which allows the agency to collect data from Google, Apple, Facebook, Yahoo and other tech companies, and the agency’s Upstream program – a huge network of internet cable taps.
Clapper did not disclose how many warrantless searches had been performed by the NSA.
Confirmation that the NSA has searched for Americans’ communications in its phone call and email databases complicates President Barack Obama’s initial defenses of the broad surveillance in June.
“When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program’s about,” Obama said. “As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content.”
Obama was referring specifically to the bulk collection of US phone records, but his answer misleadingly suggested that the NSA could not examine Americans’ phone calls and emails.
At a recent hearing of the Privacy and Civil Liberties Oversight Board, administration lawyers defended their latitude to perform such searches. The board is scheduled to deliver a report on the legal authority under which the communications are collected, Section 702 of the Foreign Intelligence Surveillance Act (FISA), passed in 2008.
Wyden and Colorado Democrat Mark Udall failed in 2012 to persuade their fellow Senate intelligence committee members to prevent such warrantless searches during the re-authorisation of the 2008 FISA Amendments Act, which wrote Section 702 into law.
Dianne Feinstein, the California Democrat who chairs the committee, defended the practice, and argued that it did not violate the act’s “reverse targeting” prohibition on using NSA’s vast powers to collect content on Americans.
“With respect to analysing the information lawfully collected under Section 702, however, the intelligence community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession,” Feinstein said in June 2012.
“The Department of Justice and the intelligence community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures, and do not provide a means to circumvent the general requirement to obtain a court order before targeting a US person under FISA.”
Clapper referred to that debate in his letter to Wyden, which came in response to the senator’s request in January for a public answer on whether the NSA had in fact conducted such searches.
“As you know, when Congress reauthorized Section 702, the proposal to restrict such queries was specifically raised and ultimately not adopted,” Clapper wrote.
Much of the NSA’s bulk data collection is covered by Section 702 of the FISA Amendments Act. This allows for the collection of communications – content and metadata alike – without individual warrants, so long as there is a reasonable belief the communications are both foreign and overseas.
The communications of Americans in direct contact with foreign targets can also be collected without a warrant, and the intelligence agencies acknowledge that purely domestic communications can also be inadvertently swept into its databases. That process is known as “incidental collection”.
Initially, NSA rules on such data prevented the databases being searched for any details relating to “US persons” – that is, citizens or residents of the US. However, in October 2011 the FISA court approved new procedures which allowed the agency to search for US person data, a revelation contained in documents revealed by Snowden.
The ruling appears to give the agency free access to search for information relating to US people within its vast databases, though not to specifically collect information against US citizens in the first place. However, until the DNI’s disclosure to Wyden, it was not clear whether the NSA had ever actually used these powers.
“It is now clear to the public that the list of ongoing intrusive surveillance practices by the NSA includes not only bulk collection of Americans’ phone records, but also warrantless searches of the content of Americans’ personal communications. This is unacceptable. It raises serious constitutional questions, and poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure a warrant or emergency authorization before monitoring his or her communications. This fact should be beyond dispute.
Senior officials have sometimes suggested that government agencies do not deliberately read Americans’ emails, monitor their online activity or listen to their phone calls without a warrant. However, the facts show that those suggestions were misleading, and that intelligence agencies have indeed conducted warrantless searches for Americans’ communications using the ‘back-door search’ loophole in section 702 of the Foreign Intelligence Surveillance Act. Today’s admission by the Director of National Intelligence is further proof that meaningful surveillance reform must include closing the back-door searches loophole and requiring the intelligence community to show probable cause before deliberately searching through data collected under section 702 to find the communications of individual Americans.
The revelation that — despite the clear intent of Section 702 to target foreign communications — the government is deliberating searching for the phone calls or emails of specific Americans and circumventing traditional warrant protections should be concerning to all.”