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)." 
Getty Images
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.”

{{ BIZOBJ (video: 4850) }}

What We're Following See More »
Trump Won’t Debate Sanders After All
3 days ago

Trump, in a statement: “Based on the fact that the Democratic nominating process is totally rigged and Crooked Hillary Clinton and Deborah Wasserman Schultz will not allow Bernie Sanders to win, and now that I am the presumptive Republican nominee, it seems inappropriate that I would debate the second place finisher. ... I will wait to debate the first place finisher in the Democratic Party, probably Crooked Hillary Clinton, or whoever it may be.”

UAW: Time to Unite Behind Hillary
4 days ago

"It's about time for unity," said UAW President Dennis Williams. "We're endorsing Hillary Clinton. She's gotten 3 million more votes than Bernie, a million more votes than Donald Trump. She's our nominee." He called Sanders "a great friend of the UAW" while saying Trump "does not support the economic security of UAW families." Some 28 percent of UAW members indicated their support for Trump in an internal survey.

Trump Clinches Enough Delegates for the Nomination
4 days ago

"Donald Trump on Thursday reached the number of delegates needed to clinch the Republican nomination for president, completing an unlikely rise that has upended the political landscape and sets the stage for a bitter fall campaign. Trump was put over the top in the Associated Press delegate count by a small number of the party's unbound delegates who told the AP they would support him at the convention."

Trump/Sanders Debate Before California Primary?
4 days ago
California: It’s Not Over Yet
4 days ago

"Clinton and Bernie Sanders "are now devoting additional money to television advertising. A day after Sanders announced a new ad buy of less than $2 million in the state, Clinton announced her own television campaign. Ads featuring actor Morgan Freeman as well as labor leader and civil rights activist Dolores Huerta will air beginning on Fridayin Fresno, Sacramento, and Los Angeles media markets. Some ads will also target Latino voters and Asian American voters. The total value of the buy is about six figures according to the Clinton campaign." Meanwhile, a new poll shows Sanders within the margin of error, trailing Clinton 44%-46%.