How the NSA Used a ‘Loophole’ to Spy on Americans

Obama’s intel czar confirms targeting U.S. communications.

WASHINGTON, DC - OCTOBER 29: A member of CodePink protests as Director of National Intelligence James Clapper (C) takes his seat prior to a hearing before the House (Select) Intelligence Committee October 29, 2013 on Capitol Hill in Washington, DC. The committee held a hearing on "Potential Changes to the Foreign Intelligence Surveillance Act (FISA)." 
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Brendan Sasso
April 1, 2014, 1:28 p.m.

The Obama ad­min­is­tra­tion’s top in­tel­li­gence of­fi­cial has con­firmed that the Na­tion­al Se­cur­ity Agency in­ten­tion­ally spied on the com­mu­nic­a­tions of Amer­ic­ans un­der a law in­ten­ded to ap­ply only to for­eign­ers.

Dir­ect­or of Na­tion­al In­tel­li­gence James Clap­per con­firmed the sur­veil­lance in a let­ter re­spond­ing to ques­tion­ing from Sen. Ron Wyden, an Ore­gon Demo­crat. The agency spied on the ac­tu­al con­tents of com­mu­nic­a­tions without a war­rant — not just “metadata” such as call times and phone num­bers.

“This is un­ac­cept­able. It raises ser­i­ous con­sti­tu­tion­al ques­tions, and poses a real threat to the pri­vacy rights of law-abid­ing Amer­ic­ans,” Wyden and Sen. Mark Ud­all, a Col­or­ado Demo­crat, said in a state­ment.

“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,” the sen­at­ors said. “This fact should be bey­ond dis­pute.”

Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act gives the NSA broad power to listen in on phone calls and ac­cess emails. But the law cov­ers only non-Amer­ic­ans loc­ated out­side of the United States.

The agency some­times col­lects Amer­ic­ans’ in­form­a­tion as it scoops up vast amounts of data on for­eign­ers. In his let­ter to Wyden, Clap­per re­vealed that the NSA has searched through that data­base spe­cific­ally look­ing for Amer­ic­ans’ com­mu­nic­a­tions.

“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.

The state­ment con­firms that the NSA has been tak­ing ad­vant­age of a secret rule change first re­vealed by The Guard­i­an in Au­gust, based on doc­u­ments leaked by Ed­ward Snowden.

It’s un­clear how many Amer­ic­ans have been af­fected by the sur­veil­lance, though the pro­gram is pre­sum­ably much smal­ler than the NSA’s bulk col­lec­tion of mil­lions of phone re­cords. But un­like that bulk data col­lec­tion, Sec­tion 702 al­lows the NSA to listen to calls and read emails.

In their state­ment, Wyden and Ud­all said the con­firm­a­tion from Clap­per shows that Con­gress must en­sure it closes the “loop­hole” in Sec­tion 702 to re­quire that the NSA has to show prob­able cause of wrong­do­ing be­fore tar­get­ing in­di­vidu­al Amer­ic­ans.

The Demo­crats also made a veiled swipe at Pres­id­ent Obama, who re­as­sured Amer­ic­ans that “nobody is listen­ing to your tele­phone calls.”

“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,” the sen­at­ors said. “However, the facts show that those sug­ges­tions were mis­lead­ing, and that in­tel­li­gence agen­cies have in­deed con­duc­ted war­rant­less searches for Amer­ic­ans’ com­mu­nic­a­tions.”

Jeff An­chukait­is, a spokes­man for Clap­per, said the dir­ect­or’s of­fice already de­clas­si­fied doc­u­ments re­lated to the sur­veil­lance of people with­in the U.S. un­der Sec­tion 702 in Au­gust.

He em­phas­ized that the “au­thor­ity is sub­ject to strict over­sight by the De­part­ment of Justice and the Of­fice of the Dir­ect­or of Na­tion­al In­tel­li­gence to en­sure com­pli­ance with the min­im­iz­a­tion pro­ced­ures, and that there were no in­ten­tion­al vi­ol­a­tions of those pro­ced­ures.”

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