NSA performed warrantless searches on Americans' calls
and emails – Clapper
NSA used 'back door' to search Americans' communications
Director of national intelligence confirms use of new
legal rule
Data collected under 'Prism' and 'Upstream' programs
Spencer Ackerman in Washington and James Ball in New York
The Guardian, Tuesday 1 April 2014 16.17 EDT
US intelligence chiefs have confirmed that the National
Security Agency has used a "back door" in surveillance law to perform
warrantless searches on Americans’ communications.
The NSA's collection programs are ostensibly targeted at
foreigners, but in August the Guardian revealed a secret rule change allowing
NSA analysts to search for Americans' details within the databases.
Now, in a letter to Senator Ron Wyden, an Oregon Democrat
on the intelligence committee, the director of national intelligence, James
Clapper, has confirmed for the first time the use of this legal authority to
search for data related to “US persons”.
“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 in the letter, which has been obtained by the Guardian.
“These queries were performed pursuant to minimization
procedures approved by the Fisa court and consistent with the statute and the
fourth amendment.”
The legal authority to perform the searches, revealed in
top-secret NSA documents provided to the Guardian by Edward Snowden, was
denounced by Wyden as a “backdoor search loophole.”
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.
On Tuesday, Wyden and Udall said the NSA’s warrantless
searches of Americans’ emails and phone calls “should be concerning to all.”
“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 authorisation before monitoring his or her
communications. This fact should be beyond dispute,” the two senators said in a
joint statement.
They continued: “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."
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