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 »
‘STARTING FROM ZERO’
Trump Ill Prepared for General Election
2 minutes ago
THE DETAILS

Even if "[t]he Republican presidential nomination may be in his sights ... Trump has so far ignored vital preparations needed for a quick and effective transition to the general election. The New York businessman has collected little information about tens of millions of voters he needs to turn out in the fall. He's sent few people to battleground states compared with likely Democratic rival Hillary Clinton, accumulated little if any research on her, and taken no steps to build a network capable of raising the roughly $1 billion needed to run a modern-day general election campaign."

Source:
27TH AMENDMENT
Congress Can’t Seem Not to Pay Itself
2 hours ago
WHY WE CARE

Rep. Dave Young can't even refuse his own paycheck. The Iowa Republican is trying to make a point that if Congress can't pass a budget (it's already missed the April 15 deadline) then it shouldn't be paid. But, he's been informed, the 27th Amendment prohibits him from refusing his own pay. "Young’s efforts to dock his own pay, however, are duck soup compared to his larger goal: docking the pay of every lawmaker when Congress drops the budget ball." His bill to stiff his colleagues has only mustered the support of three of them. Another bill, sponsored by Rep. Jim Cooper (D-TN), has about three dozen co-sponsors.

Source:
THE QUESTION
How Far Away from Cleveland is the California GOP Staying?
3 hours ago
THE ANSWER

Sixty miles away, in Sandusky, Ohio. "We're pretty bitter about that," said Harmeet Dhillon, vice chairwoman of the California Republican Party. "It sucks to be California, we're like the ugly stepchild. They need us for our cash and our donors, they don't need us for anything else."

ATTORNEY MAY RELEASE THEM ANYWAY
SCOTUS Will Not Allow ‘DC Madam’ Phone Records to Be Released
3 hours ago
WHY WE CARE

Anyone looking forward to seeing some boldfaced names on the client list of the late Deborah Jeane Palfrey, the "DC Madam," will have to wait a little longer. "The Supreme Court announced Monday it would not intervene to allow" the release of her phone records, "despite one of her former attorneys claiming the records are “very relevant” to the presidential election. Though he has repeatedly threatened to release the records if courts do not modify a 2007 restraining order, Montgomery Blair Sibley tells U.S. News he’s not quite sure what he now will do."

Source:
DOWN TO THE WIRE
Sanders Looks to Right the Ship in Indiana
19 hours ago
THE LATEST

Hillary Clinton may have the Democratic nomination sewn up, but Bernie Sanders apparently isn't buying it. Buoyed by a poll showing them in a "virtual tie," Sanders is "holding three rallies on the final day before the state primary and hoping to pull off a win after a tough week of election losses and campaign layoffs." 

Source:
×