NSA performed warrantless searches on Americans' calls and emails – Clapper

NSA performed warrantless searches on Americans' calls and emails – Clapper

NSA used 'back door' to search Americans' communications
Director of national intelligence confirms use of new legal rule
Data collected under 'Prism' and 'Upstream' programs

Spencer Ackerman in Washington and James Ball in New York
The Guardian, Tuesday 1 April 2014 16.17 EDT
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James Clapper NSA Clapper said: 'These queries were performed pursuant to minimization procedures and consistent with the statute and the fourth amendment.' Photo: Shawn Thew/EPA

US intelligence chiefs have confirmed that the National Security Agency has used a "back door" in surveillance law to perform warrantless searches on Americans’ communications.

The NSA's collection programs are ostensibly targeted at foreigners, but in August the Guardian revealed a secret rule change allowing NSA analysts to search for Americans' details within the databases.

Now, in a letter to Senator Ron Wyden, an Oregon Democrat on the intelligence committee, the director of national intelligence, James Clapper, has confirmed for the first time the use of this legal authority to search for data related to “US persons”.

“There have been queries, using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States,” Clapper wrote in the letter, which has been obtained by the Guardian.

“These queries were performed pursuant to minimization procedures approved by the Fisa court and consistent with the statute and the fourth amendment.”

The legal authority to perform the searches, revealed in top-secret NSA documents provided to the Guardian by Edward Snowden, was denounced by Wyden as a “backdoor search loophole.”

Many of the NSA's most controversial programs collect information under the law affected by the so-called loophole. These include Prism, which allows the agency to collect data from Google, Apple, Facebook, Yahoo and other tech companies, and the agency's Upstream program – a huge network of internet cable taps.

Clapper did not disclose how many warrantless searches had been performed by the NSA.

Confirmation that the NSA has searched for Americans’ communications in its phone call and email databases complicates President Barack Obama’s initial defenses of the broad surveillance in June.

“When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program’s about,” Obama said. “As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content.”

Obama was referring specifically to the bulk collection of US phone records, but his answer misleadingly suggested that the NSA could not examine Americans’ phone calls and emails.

At a recent hearing of the Privacy and Civil Liberties Oversight Board, administration lawyers defended their latitude to perform such searches. The board is scheduled to deliver a report on the legal authority under which the communications are collected, Section 702 of the Foreign Intelligence Surveillance Act (Fisa), passed in 2008.

Wyden and Colorado Democrat Mark Udall failed in 2012 to persuade their fellow Senate intelligence committee members to prevent such warrantless searches during the re-authorisation of the 2008 Fisa Amendments Act, which wrote Section 702 into law.

Dianne Feinstein, the California Democrat who chairs the committee, defended the practice, and argued that it did not violate the act’s “reverse targeting” prohibition on using NSA’s vast powers to collect content on Americans.

“With respect to analysing the information lawfully collected under Section 702, however, the intelligence community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession,” Feinstein said in June 2012.

“The Department of Justice and the intelligence community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures, and do not provide a means to circumvent the general requirement to obtain a court order before targeting a US person under Fisa.”

Clapper referred to that debate in his letter to Wyden, which came in response to the senator’s request in January for a public answer on whether the NSA had in fact conducted such searches.

[link to www.theguardian.com]