NSA Uses Loophole to Justify Collecting Domestic E-mail, Phone Calls

By:  Joe Wolverton, II, J.D.
08/13/2013
       
NSA Uses Loophole to Justify Collecting Domestic E-mail, Phone Calls

Relying on a loophole in FISA, the NSA is conducting active and warrantless surveillance of the electronic communications of Americans.

The National Security Agency (NSA) is using a “secret backdoor” to conduct warrantless searches of the e-mails and phone calls of American citizens, the Guardian (U.K.) reports. As with earlier reports, this latest revelation comes from information given to the newspaper by former NSA contractor Edward Snowden.

Spencer Ackerman and James Ball, reporting for the Guardian, write that a rule change that was previously unreported is giving the NSA the inroad it needs to monitor “individual Americans’ communications using their name and other identifying information.”

In a statement to the Guardian, Senator Ron Wyden (D-Ore.) reportedly said that this rule change makes it possible for the NSA to conduct “warrantless searches for the phone calls or e-mails of law-abiding Americans.”

The regulatory restatement relied on by the NSA to justify their unconstitutional surveillance was “approved in 2011” by the Obama administration, in direct contradiction to the president’s commitment to protect the constitutionally protected privacy of the American public “from the NSA’s dragnet surveillance programs.”

The federal spy apparatus is relying on Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (FISA). This provision purports to grant the government the “authority to target without warrant the communications of foreign targets, who must be non-US citizens and outside the US at the point of collection.”

Under this same section, furthermore, Americans’ communications with people residing overseas can also be collected without a warrant. Of course, the NSA admits that “purely domestic communications can also be inadvertently swept into its databases.” These accidents are known as “incidental collection” in the argot of the surveillance state.

The information revealed in the document provided by Snowden to the Guardian is “the first evidence that the NSA has permission to search those databases for specific US individuals’ communications.”

In a nutshell, the change to the procedure the NSA is required by law to follow in order to minimize the “incidental collection” of domestic communications was amended in the “document provided to operatives in the NSA's Special Source Operations division — which runs the Prism program and large-scale cable intercepts through corporate partnerships with technology companies.” The precise pattern is described by the Guardian:

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