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"Let's Put The Whole Elephant Out There": President Obama's Speech and Bulk Searches of Americans’ Emails

NSA Building
NSA Building
Patrick Toomey,
Deputy Director,
ACLU National Security Project
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August 12, 2013

In his news conference last Friday, President Obama acknowledged the need for critical reforms to the National Security Agency’s surveillance programs. Yet despite his nod toward greater transparency — what he called an effort to “put the whole elephant out there” for the public to see — his statements included some glaring omissions.

For starters, the president made no mention of Section 702 of the FISA Amendments Act (FAA), a provision used by the government to conduct warrantless searches of Americans’ communications. The need to reform the FAA has been made all the more urgent following a front-page story last week in The New York Times reporting that the NSA is searching the content of virtually all internet communications that enter or leave the United States. That is an astonishing revelation. While the surveillance program described in the article is in some ways complex, the grave implications for Americans’ privacy are clear. These are the most troubling elements of what we have learned:

  1. The NSA Is Copying And Searching Nearly Every Email That Enters Or Leaves The Country

The newly disclosed NSA surveillance program entails the bulk collection and searching of Americans’ international email and text communications. Rather than simply collecting communications to or from NSA targets, as officials have repeatedly led the public to believe, the government is also collecting communications “about” NSA targets — a possibility the ACLU first raised in June. The problem is that in order to find emails that are “about” a target, the NSA claims the authority to open up each message that enters or leaves the country to see what’s inside.

To accomplish this, the NSA makes a “clone” of every international communication and then searches those copies for keywords or terms associated with NSA targets. When it gets a hit, the NSA stores the communication for further analysis; the remaining communications are saved only temporarily — “a small number of seconds,” in the words of one official — before being deleted. In other words, the NSA thinks it’s okay to intercept and then read Americans’ emails, so long as it does so really quickly. But that is not how the Fourth Amendment works. Whether the NSA inspects and retains these messages for years, or only searches them once before moving on, the invasion of Americans’ privacy is real and immediate. Put differently, there is no “five-second rule” for Fourth Amendment violations.

  1. The NSA Appears To Decide For Itself What Targets and Search Terms To Use When Searching Americans’ Emails

When the NSA goes hunting through our international communications, it uses a set of “selectors,” or identifying information, tied to its targets. Some of these keywords may be narrow, as officials have suggested in their comments — for instance, a person’s name, email address, phone number, or other identifying information. But even if true, that constraint appears to be self-imposed. The NSA’s search terms are not controlled by the statute that purportedly authorizes this surveillance. Nor, as far as we know, are these selectors individually approved by the secret Foreign Intelligence Surveillance Court. As things stand, we have only the NSA’s assurances that its selectors are narrow and closely tied to its targets. Moreover, even if the current selectors are narrowly drawn, there appears to be little to prevent the NSA from adopting more expansive and invasive search criteria in the future.

  1. The NSA’s Searches Are Not Limited To Terrorist Activity

Intelligence officials routinely use the specter of terrorist plots to justify their sweeping surveillance powers, but the email searches revealed today go far beyond terrorist activity. Under this program, the government may monitor people who aren’t even suspected of any wrongdoing, simply because they might have said something “about” someone of foreign-intelligence interest to the NSA. As we have pointed out in the past, “foreign intelligence” is a category with few limits; it is defined exceptionally broadly to include not only information about terrorism but also information about intelligence activities, the national defense, and even “the foreign affairs of the United States.”

  1. Nothing About The Bulk Collection Of Americans’ Emails Is Inadvertent

Government officials have repeatedly assured the public that the NSA is permitted to target only foreigners abroad for surveillance, not-so-subtly intimating any collection of Americans’ data was accidental. We have long argued that such claims were deeply misleading and mischaracterize a surveillance program that overcollects Americans’ communications by design. The surveillance program revealed last week confirms this and more: It shows that the interception of American communications under the FAA is neither “targeted” at foreigners nor “inadvertent” in any meaningful sense.

  1. Officials Concede That This Program Has Not Been Critical In Preventing Terrorist Plots

Over the past two months, officials have frequently struggled to identify instances where sweeping surveillance programs have proven critical to thwarting terrorist attacks—and this case is no different. When asked whether bulk searching of internet communications for information “about” NSA targets had proven valuable, a senior intelligence official said that it was difficult to identify any particular terrorist plot that would have been carried out if the surveillance had not taken place. Over the coming weeks and months, the government will undoubtedly declassify details about purported success stories of its dragnet surveillance. The critical question to ask for each example is whether indiscriminate searching of Americans’ communications was necessary, or whether the NSA could have accomplished its mission with the targeted surveillance the Constitution requires.

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