As an Illinois senator running for president in 2008, Barack Obama promised there would be no more "wiretaps without warrants" under his administration. He abandoned that position even before he was elected to the White House, voting for legislation that amended the Foreign Intelligence Surveillance Act (FISA) to let the National Security Agency (NSA) collect Americans' international communications without a warrant.
The targets of such surveillance were supposed to be foreigners located outside of the United States, and the purpose of the surveillance was supposed to be the acquisition of "foreign intelligence information," implying that the targets would be suspected spies or terrorists. But judging from a recent analysis by The Washington Post, about half of the people whose communications the NSA intercepts under Section 702 of FISA are U.S. citizens or legal residents, and the vast majority are innocent bystanders.
Former NSA contractor Edward Snowden provided the Post with a large sample of communications collected by the agency, including "160,000 intercepted e-mail and instant-message conversations" and "7,900 documents taken from more than 11,000 online accounts." The Post found that "nine of 10 account holders…were not the intended surveillance targets," while "nearly half of the surveillance files…contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents."
Why does a surveillance program that was supposed to be narrowly targeted look so indiscriminate? Because all the people who come into contact with a target, no matter how innocently or tangentially, are swept into the NSA's online dragnet, regardless of their locations or nationalities.
Anyone who communicates directly with a target is considered fair game, including U.S. citizens on U.S. soil. But even if you've never corresponded with a friend in Pakistan or a client in Iraq, you may have inadvertently rubbed electronic shoulders with someone under surveillance.
"If a target entered an online chat room," the Post reports, "the NSA collected the words and identities of every person who posted there, regardless of subject, as well as every person who simply 'lurked,' reading passively what other people wrote." Sometimes "the NSA designated as its target the [I.P. address] of a computer server used by hundreds of people."
Not surprisingly, the material that the NSA obtains through these methods includes much information of questionable relevance to national security. The Post mentions medical records, academic transcripts, romantic correspondence, descriptions of sexual encounters, discussions of emotional crises and financial troubles, pictures of babies and toddlers, and racy photos of bare-chested men and lingerie-clad women.
An NSA fact sheet about Section 702 says "any inadvertently acquired communication of or concerning a U.S. person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime." But according to the Post, "The NSA treats all content intercepted incidentally from third parties as permissible to retain, store, search and distribute to its government customers." The Post found that the NSA retains a great deal of material with no apparent intelligence value, "described as useless by analysts."
According to the Obama administration, all this is old news and no big deal. "These reports simply discuss the kind of incidental interception of communications that we have always said takes place under Section 702," Robert Litt, general counsel to Director of National Intelligence James Clapper, told The New York Times on Sunday. "The most that you could conclude from these news reports is that each valid foreign intelligence target talks to an average of nine people."
If the mass collection of sensitive information about law-abiding people is to be expected, as my Reason colleague Scott Shackford observes, it is not really accurate to say it happens "inadvertently" or "not wittingly," as Clapper put it in congressional testimony last year. When such a wholesale invasion of privacy is the inevitable and predictable result of certain intelligence methods, choosing to use those methods means you are doing it on purpose.