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发帖数: 29846 | 1 Obama administration had restrictions on NSA reversed in 2011
By Ellen Nakashima, Published: September 7
The Obama administration secretly won permission from a surveillance court
in 2011 to reverse restrictions on the National Security Agency’s use of
intercepted phone calls and e-mails, permitting the agency to search
deliberately for Americans’ communications in its massive databases,
according to interviews with government officials and recently declassified
material.
In addition, the court extended the length of time that the NSA is allowed
to retain intercepted U.S. communications from five years to six years —
and more under special circumstances, according to the documents, which
include a recently released 2011 opinion by U.S. District Judge John D.
Bates, then chief judge of the Foreign Intelligence Surveillance Court.
What had not been previously acknowledged is that the court in 2008 imposed
an explicit ban — at the government’s request — on those kinds of
searches, that officials in 2011 got the court to lift the bar and that the
search authority has been used.
Together the permission to search and to keep data longer expanded the NSA’
s authority in significant ways without public debate or any specific
authority from Congress. The administration’s assurances rely on legalistic
definitions of the term “target” that can be at odds with ordinary
English usage. The enlarged authority is part of a fundamental shift in the
government’s approach to surveillance: collecting first, and protecting
Americans’ privacy later.
“The government says, ‘We’re not targeting U.S. persons,’ ” said
Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology
. “But then they never say, ‘We turn around and deliberately search for
Americans’ records in what we took from the wire.’ That, to me, is not so
different from targeting Americans at the outset.”
The court decision allowed the NSA “to query the vast majority” of its e-
mail and phone call databases using the e-mail addresses and phone numbers
of Americans and legal residents without a warrant, according to Bates’s
opinion.
The queries must be “reasonably likely to yield foreign intelligence
information.” And the results are subject to the NSA’s privacy rules.
The court in 2008 imposed a wholesale ban on such searches at the government
’s request, said Alex Joel, civil liberties protection officer at the
Office of the Director of National Intelligence (ODNI). The government
included this restriction “to remain consistent with NSA policies and
procedures that NSA applied to other authorized collection activities,” he
said.
But in 2011, to more rapidly and effectively identify relevant foreign
intelligence communications, “we did ask the court” to lift the ban, ODNI
general counsel Robert S. Litt said in an interview. “We wanted to be able
to do it,” he said, referring to the searching of Americans’
communications without a warrant.
Joel gave hypothetical examples of why the authority was needed, such as
when the NSA learns of a rapidly developing terrorist plot and suspects that
a U.S. person may be a conspirator. Searching for communications to, from
or about that person can help assess that person’s involvement and whether
he is in touch with terrorists who are surveillance targets, he said.
Officials would not say how many searches have been conducted.
The court’s expansion of authority went largely unnoticed when the opinion
was released, but it formed the basis for cryptic warnings last year by a
pair of Democratic senators, Ron Wyden (Ore.) and Mark Udall (Colo.), that
the administration had a “back-door search loophole” that enabled the NSA
to scour intercepted communications for those of Americans. They introduced
legislation to require a warrant, but they were barred by classification
rules from disclosing the court’s authorization or whether the NSA was
already conducting such searches.
“The [surveillance] Court documents declassified recently show that in late
2011 the court authorized the NSA to conduct warrantless searches of
individual Americans’ communications using an authority intended to target
only foreigners,” Wyden said in a statement to The Washington Post. “Our
intelligence agencies need the authority to target the communications of
foreigners, but for government agencies to deliberately read the e-mails or
listen to the phone calls of individual Americans, the Constitution requires
a warrant.”
Senior administration officials disagree. “If we’re validly targeting
foreigners and we happen to collect communications of Americans, we don’t
have to close our eyes to that,” Litt said. “I’m not aware of other
situations where once we have lawfully collected information, we have to go
back and get a warrant to look at the information we’ve already collected.”
The searches take place under a surveillance program Congress authorized in
2008 under Section 702 of the Foreign Intelligence Surveillance Act. Under
that law, the target must be a foreigner “reasonably believed” to be
outside the United States, and the court must approve the targeting
procedures in an order good for one year.
But — and this was the nub of the criticism — a warrant for each target
would no longer be required. That means that communications with Americans
could be picked up without a court first determining that there is probable
cause that the people they were talking to were terrorists, spies or “
foreign powers.”
That is why it is important to require a warrant before searching for
Americans’ data, Udall said. “Our founders laid out a roadmap where
Americans’ privacy rights are protected before their communications are
seized or searched — not after the fact,” he said in a statement to The
Post.
Another change approved by Bates allows the agency to keep the e-mails of or
concerning Americans for up to six years, with an extension possible for
foreign intelligence or counterintelligence purposes. Because the retention
period begins “from the expiration date” of the one-year surveillance
period, the court effectively added up to one year of shelf life for the e-
mails collected at the beginning of the period.
Joel said that the change was intended to standardize retention periods
across the agencies and that the more generous standard was “already in use
” by another agency.
The NSA intercepts more than 250 million Internet communications each year
under Section 702. Ninety-one percent are from U.S. Internet companies such
as Google and Yahoo. The rest come from “upstream” companies that route
Internet traffic to, from and within the United States. The expanded search
authority applies only to the downstream collection.
Barton Gellman contributed to this report. |
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