Blog of Rights

The NSA's Spying On Americans: Not As "Inadvertent" As It Claims

By Patrick C. Toomey, Staff Attorney, ACLU National Security Project at 10:19am

Another week, another trove of documents detailing the inner secrets of the NSA's massive spying program. Recent revelations have finally provided a look at the procedures that the NSA uses to target and retain communications under the FISA Amendments Act (FAA). As my colleague Brett Max Kaufman wrote even before this latest batch of news broke, officials have been using the word "target" in very misleading ways to repeatedly reassure the American public that the law only applies to foreigners abroad, and does not permit the NSA to listen in on Americans' phone calls or read their emails.

We now know just how misleading those assurances have been. The procedures show that the NSA has carved out several enormous loopholes in the law's "targeting" requirements.

The FAA was passed in 2008 to facilitate the mass acquisition of international communications. Under this authority, the NSA claims only to intercept American communications "inadvertently," but this is a clever fiction: the surveillance program has been engineered to sweep up American communications in vast quantity, while giving the NSA cover to claim that it is not intentionally targeting Americans.

This deliberate collection of Americans' communications happens in at least three ways. First, the government can target foreigners on the other end of Americans' international communications. So, if you call or email family, friends, or business associates abroad, the NSA can intercept those communications so long as it doesn't intentionally target a specific, known American in another country. The surveillance must also relate to "foreign intelligence," but this term has been construed so broadly as to be all but meaningless.

Second, the government has set a dismally low bar for concluding that a potential surveillance target is, in fact, a foreigner located abroad. By default, targets are assumed to be foreign. That's right, the procedures allow the NSA to presume that prospective targets are foreigners outside the United States absent specific information to the contrary—and to presume therefore that those individuals are fair game for warrantless surveillance.

Third, the procedures allow the NSA to collect not just the communications of a foreign target, but any communications about a foreign target. This provision likely results in significant over-collection of even purely domestic communications. So, rather than striving to protect Americans, the procedures err on the side of over-collection and less respect for privacy rights.

Indeed, these exceptions and loopholes open the door to the routine interception of American communications. And this doesn't just result from the odd mistake; this is what the law was designed to do. When Congress was debating whether to pass the FAA's predecessor law, back in 2006, government officials made clear that "one-end-domestic" communications were the ones they wanted the most—meaning, the international calls and emails of Americans themselves.

The procedures yield other proof of the government's interest in these communications. If the NSA's interception of American phone calls and emails was really accidental, you might think that the government would destroy the record as soon as it realized its error. But the procedures require no such thing. Instead, the "minimization" procedures allow the NSA to read and keep Americans' communications—even when they have been collected inadvertently. Domestic communications can be retained forever if they contain "foreign intelligence information" or evidence of a crime, or if they are encrypted or aid "traffic analysis." That's a lot of exceptions. And even communications that do not meet any of these criteria can be stored in the NSA's massive databases for as long as five years.

So, while government officials may correctly claim that the FAA does not permit the NSA to "intentionally target" any American, it does allow the NSA to achieve much the same result—and that's something we haven't heard much about. The government has designed a surveillance program that contemplates—and, indeed, relies upon—the widespread overcollection of Americans' communications. Although the government officially disavows any interest in our phone calls and emails, the program relies on loose standards and error-prone procedures to pull in massive quantities of our information, which can be retained and examined for years.

In short, there is nothing inadvertent or accidental about it. The loopholes in the law allow the government to obtain, on a grand scale, exactly what officials suggest the NSA is forbidden from collecting: the contents of Americans' communications.

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