NSA Performed Warrantless Searches On Americans’ Calls And Emails

Stan Ward

Stan Ward

April 8, 2014

The controversy surrounding NSA snooping appears to be alive and well according to the latest information courtesy of The Guardian. The NSA is guilty of using legal loopholes and a backdoor to search Americans’ communications. The Director of National Intelligence, James Clapper, admitted this but claimed that: ’These queries were performed pursuant to minimization procedures and consistent with the statute and the Fourth Amendment.’ This was the gist of a letter sent by Clapper to Senate Intelligence Committee member Ron Wyden (D-Oregon) in which he elaborated on the legal justification of such practices. Clapper stated that the procedures were in line with the rulings of the Fisa (Foreign Intelligence Surveillance Act) Court. Wyden countered that this constituted a twisting of the statute and was in fact a backdoor around the process. Regardless, it is now obvious that warrantless searches on Americans’ communications continue unabated.

The NSA’s data collection are supposedly aimed exclusively at foreigners but it appears that a rule change or if you prefer a loophole, specifically section 702 of the act is allowing NSA analysts to search for Americans’ details within their databases. Many of the NSA’s most controversial programs collect information under the law affected by the so-called loophole. One such program is called Prism. This permits the agency to collect data from Google, Apple, Facebook, Yahoo and other tech companies.  Another agency program, Upstream, allows for a large network of internet cable taps.

At a recent hearing of the Privacy and Civil Liberties Oversight Board, administration lawyers defended their authorizations to perform such searches. It will report on this authority and how it is permitted under section 702 of Fisa passed in 2008. Apparently when Congress reauthorized section 702 there was some debate over surveillance practices. But the policy of limiting such searches was not adopted.

Much of the NSA’s bulk collection data is covered by section 702 of the Fisa Amendments Act. Content and metadata are allowed to be collected without warrants. There must be a reasonable belief that the communications are both foreign and overseas. But the communications of Americans in direct contact with foreign targets can also be collected without a warrant. More worrisome is that agencies acknowledge that domestic communications can also be inadvertently swept into databases. This process is known as ’incidental collection’.

At first, NSA rules forbade databases being searched for any details regarding US persons, i.e. citizens or residents of the US. But in October, 2011 the Fisa court approved new procedures which allowed the agency to search for US persons data. This was a fact revealed in the documents leaked by Edward Snowden and which has caused such a furor in government circles. Though it is not an aim of the ruling to collect information against US citizens, the ruling appears to give the agency free access to search for information relating to US persons within its vast database.

This should be a major concern to those who value privacy. Mark Udall, committee member from Colorado joins in dissent with Senator Wyden. They said: ’ Today’s  admission by the Director of National Intelligence is further proof that meaningful surveillance reform must include closing the backdoor 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.”

These developments make it clear that surveillance is not likely to stop. And it is also apparent that individuals must go to extremes to safeguard their privacy. One way of course is to employ VPNs when using the internet. Another is to remain vigilant and proactive in the fight to retain personal communication privacy.

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