That National Security Agency has used a "loophole" in surveillance law to conduct searches of the contents of Americans' personal communications without bothering to secure warrants, warn Senators Ron Wyden (D-Ore.) and Mark Udall (D-Colo.). The senators cite a letter to Wyden from Director of National Intelligence James Clapper (pictured at right) in which the controversial spy chief answered a question as to whether the NSA "sought and obtained the authority to query information" regarding the "communications of specific Americans." The NSA has engaged in such queries, Clapper replied.
"It is now clear to the public that the list of ongoing intrusive surveillance practices by the NSA includes not only bulk collection of Americans' phone records, but also warrantless searches of the content of Americans' personal communications," Wyden and Udall respond.
The forms of communications subject to search aren't specified in Clapper's letter, but could include phone calls, emails, and other electronic communications—because that's what the NSA does. The senators, who have long counted among the main legislative opponents of the surveillance state, go on to critique the NSA's actions at length.
This is unacceptable. It raises serious constitutional questions, and poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure a warrant or emergency authorization before monitoring his or her communications. This fact should be beyond dispute.
Senior officials have sometimes suggested that government agencies do not deliberately read Americans' emails, monitor their online activity or listen to their phone calls without a warrant. However, the facts show that those suggestions were misleading, and that intelligence agencies have indeed conducted warrantless searches for Americans' communications using the 'back-door search' loophole in section 702 of the Foreign Intelligence Surveillance Act. Today's admission by the Director of National Intelligence is further proof that meaningful surveillance reform must include closing the back-door searches loophole and requiring the intelligence community to show probable cause before deliberately searching through data collected under section 702 to find the communications of individual Americans.
Section 702 of the FISA Amendments Act established a legal framework for the government to acquire foreign intelligence by targeting non-U.S. persons who are reasonably believed to be located outside the United States under a program approved by the FISA Court. Because Section 702 does not involve obtaining individual warrants, it contains language specifically intended to limit the government's ability to use these new authorities to deliberately spy on Americans.
The revelation that — despite the clear intent of Section 702 to target foreign communications — the government is deliberating searching for the phone calls or emails of specific Americans and circumventing traditional warrant protections should be concerning to all.
The full text of Clapper's letter can be read below. Weep at your leisure.