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

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.

Learn more about government surveillance and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Add a comment (4)
Read the Terms of Use

MatMan

I keep reading that the warrantless collection of phone records metadata is not a violation of the 4th Amendment because of the Supreme Court's ruling in Smith v. Maryland. This may be an inconsequential point, but Smith allowed the police to REQUEST that the telephone company provide the pen/register data. In the instant NSA case the Government is DEMANDING that telecoms provide the data. Smith did not rule on the constitutionality of the Government demanding data. Anyone care to respond?

Anonymous

Dear President Obama,

We are writing to let you know that my husband and I believe that for over 3 years we have been targeted for harassment. We are US citizens and we love our country.

We contacted the SEC about our investment accounts being hacked into, and our email and mail being opened and tampered with. Our cell phones repeatedly are taken/stolen, and random calls and emails pop up. Our computers are also hacked into.

Our identity theft is a big concern since all our legal documents were missing- including passports, birth and marriage certificates, driver's licenses, deed to our house and then the investment binder with our accounts information.

We received a letter on June 12, 2013 from the FBI from "XXXX Victim Specialist" (unsigned) that my husband, XXX,was identified as a victim of crime and they are investigating this case.

Our cars were tampered with and in March, one was totaled in an accident when my husband was in the car. He luckily got out alive, but the next day we received an anonymous article about cars being remote controlled: "Can Your Car Be Hacked?" by Kim Boatman.
This is after we had repeated death threats.

When all 3 of us are in our car, including our innocent 7 year old son, we are being sideswiped by other cars, in an effort to run us off the road and cause an accident. We have not done anything wrong, especially our innocent child.

We believe there are other unethical practices that are taking place against all 3 of us. We don't know who is behind this.

We do know that the harassment started around when we moved into our fully-paid-for-house in a closed gated community in XX, XX, 3 years ago. The XX County Treasurer's office stated that when a house is listed in the papers, "unscrupulous folks" follow them. It may be their effort to force us to move out and buy the house cheaply / foreclose).
Or it could be racially/religiously motivated (We are Indian descent / Hindus.)

Our attempts at getting good jobs have been repeatedly thwarted for 3 years, including anonymously hacking through HR department's firewall and making up lies about my husband so as to not hire him. We got flat tires, brakes and lights tampered with, gas emptied etc. every time there was an interview.

Our concern is that the people attempting to harm us will actually be successful- and they said it will look like an accident.

Sincerely,
XXX

Anonymous

Maybe the mafia hid cameras in your house and it's bugged before you moved in or it was there when you all moved in because the previous owners had the house bugged by the mafia. I sure wouldn't write the president and he'll probably never read that or say anything on it or do anything much. That's just us. How'd you have proof it's the NSA/ CIA? Are you all terrorists or something- why would they do that? Anyways, could be government doing that. The previous article was correct when it said that the spying Prism/ NSA can have a slight chilling effect on how people socialize or whatever it said. We are totally froze on that stuff- not slightly chilled. Wait till they spy on you and if they did psychological warfare on you and spy on you- then see how much you like spies. We were reading on a crazy cam man, too on a sillier site and a photographer told em how to do that stuff. But we got our house all cammed up by the mafia- it's bugged. So, you can learn no privacy, but whatever. This may be what government's doing now that they said they can kill anyone n' keep it all secret in US and anywhere else. This post may be faked- they said cam guys was actors. I'm the one who was sayin' everyon'e spied on all time and seems someone put him up to doing that cam stuff- the black man in seattle- put him up to it. He said to show ppl they spied on 24/7. Everywhere you go it's cams and double mirrors, spying - parents hide cams in kids rooms even and the police had cams in restroom stalls at highway rest stops they had put in and wal-mart has cams - all dressing rooms are cammed up, wal-marts funny and laughs at ppl 24/7 on them cams. It is funny and would be a good film to film ppl there n' make fun of 'em though. Anyways, this may be faked post for all we know or to get attention for something. Like if the government ran their car off the road, would you want them spying like that on everything you do. they are too busy for that they told us, but I'm definately chilled n' you don't talk. Also, the solitary thing's real interesting here. I noticed the idea of being round ppl seemed weird to us, too here. We alone lots here and held hostage by the mafia- so- if you hoped of goin' out you can forget it. They took this whole area over

Anonymous

Who is doing that? Is this some kind of game or saying something -is the word feciciously? Is the government doing that stuff on the previous post? Could it be the mafia doing that- maybe your house is bugged by them- we know ours sure is. There's lots of nonsense online and mabye this is another goofy thing. What did you all do to get the cIA's atention? You'll probably never read this and we may not be back on this page also - noone'll read it - noone'll post and answer. if they try to stop you from getting a job- maybe they are suspection you all of being spies or terrorists and try to see if they do that then see if you'll go do spying or terrorism for money. Anyways, the previous article's right- we been totally frozen not just slightly chilled - the spying- we dont go on them websites- we kinda looked at very little of it. online we are not on much stuff on there. the mafia may have been doing that, but it's odd. yes, maybe try to make you move like you said- it could be- maybe the criminals wanna move there because they're hired to kill someone in the area and tryin' to take it over. the fbi told you that houses in papers are targets for that so maybe they are right- targets that you moved there recently and try to get you to move out. they maybe hid cams in the house and bugged it, too. mafia has bugged our house.

Sign Up for Breaking News