Earth to NSA: It's Not 'Inadvertent' Collection of Private Data if You Know and Keep Doing It


"It depends on what your definition of 'definition' is."

Because it's been a year since media outlets began reporting information from the documents provided by Edward Snowden, it looks like that's enough time for Obama administration to declare, "Oh, that? That's old news," to any new stories, despite having previously denied certain claims.

Such is the response to this weekend's revelations in The Washington Post that the National Security Agency (NSA) has, indeed, intercepted and collected all sorts of data from all sorts of people who were American citizens and had no connection to terrorism.

Reason's Nick Gillespie pointed out the latest story Sunday morning. Obama administration officials wasted no time trying to declare the news to not be news at all over at The New York Times:

On Sunday, Robert Litt, the general counsel to the director of national intelligence, said in an interview that The Post's article cites "figures that suggest foreign intelligence collection intercepts the communications of nine 'bystanders' for every 'legally targeted' foreigner."

"These reports simply discuss the kind of incidental interception of communications that we have always said takes place under Section 702," he said, referring to the law that governs the collection of information on foreigners. "We target only valid foreign intelligence targets under that authority, and the most that you could conclude from these news reports is that each valid foreign intelligence target talks to an average of nine people." The administration has made no secret of the fact that, as it vacuums data from around the globe, it sometimes inadvertently collects information from innocent people, including some Americans.

Old news, folks! Move along! A shame the NSA still has still been unable to erase this pivotal exchange where Director of National Intelligence James Clapper lies to the Senate Intelligence Committee about it in 2013, months before Snowden's leaks began:


Clapper here used the "not wittingly" addendum to try to weasel out of factual accuracy. The thing, though, is that once you know a process of data collection is "inadvertently" or "unintentionally" collecting private information from Americans unconnected to any terrorism investigation and you keep on using that system, then it is no longer "inadvertent" or "unintentional." The NSA may actually, genuinely not want the data, but it cannot say it is not purposefully gathering it. Here's some of the information The Washington Post has seen swept up from anybody whose paths (both virtual and actual) crossed a target:

Among the latter are medical records sent from one family member to another, résumés from job hunters and academic transcripts of schoolchildren. In one photo, a young girl in religious dress beams at a camera outside a mosque.

Scores of pictures show infants and toddlers in bathtubs, on swings, sprawled on their backs and kissed by their mothers. In some photos, men show off their physiques. In others, women model lingerie, leaning suggestively into a webcam or striking risque poses in shorts and bikini tops.

"None of the hits that were received were relevant," two Navy cryptologic technicians write in one of many summaries of nonproductive surveillance. "No additional information," writes a civilian analyst. Another makes fun of a suspected kidnapper, newly arrived in Syria before the current civil war, who begs for employment as a janitor and makes wide-eyed observations about the state of undress displayed by women on local beaches.

Last year: We're not reading your e-mail! This year: What? That's old news!

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  1. then it is no longer “inadvertent” or “unintentional.”

    As a wise man, or was it RC Dean instead, once said, predictable consequences are not unintentional.

    1. He was wrong then and wrong now; conflating foresight and intent.

      If you shoot a home invader, you can foresee that death is likely to result from the wound. However, you hopefully do not INTEND his death (and if you do you may be guilty of murder).

  2. “We’ve always wiped our asses with the Fourth Amendment. Why are you even talking about this?”

  3. Phony scandal! Bush! Media bias against the Obamessiah! You’re a bad person for noticing!

    1. You forgot, “RAAAAAAAAAAAAACIST!!”

  4. But without the government, who will routinely and systematically violate our rights and liberties?

    1. …and take half of our money?

    2. I’m sure we could privatize this function 🙂


    1. Yeah, and intended consequences are especially not unintentional.

      And you can’t tell me that they didn’t mean to sweep up information on US citizens. The whole system is designed to do that.

  6. Govt is just those rights we violate together.

  7. Congress has no balls.

  8. Clapper here used the “not wittingly” addendum to try to weasel out of factual accuracy.

    Classic Clapper!

  9. That fucking Clapper, or as I call him, that domestic enemy of the Constitution.

    People talk about punchable faces. That fuckers whole head is punchable.

  10. It’s “inadvertent” in the sense that “due to modern communication systems (and especially even foreign countries using the public Internet for their important comms), it’s impossible to intercept the targets communications without getting a whole bunch of other peoples’, including US persons.” And it’s impossible to then determine what belongs to a US person without looking at it.

    So the origin of this problem is that with everything moving to the Internet, they couldn’t continue to do their work the same way without getting Americans’ stuff. (They had always faced this problem in a much smaller way, for Americans’ traveling abroad and using satellite communications.)

    But, since the law bans them from doing that, they get around it by then pretending that this isn’t *really* intercepting it, because it doesn’t become “content” and “product” until after the minimization step. However, that story suggests that the minimization performed is not sufficient.

  11. But the Surveillance State(TM) is for YOUR protection!

    Also, why do you want children to get hurt?

  12. Last year: We’re not reading your e-mail! This year: What? That’s old news!

    Next year: Statute of limitations!

  13. Does the NSA collect any information on millions or hundreds of millions of Americans?

    Haha! No!! It’s tens of tens of millions, silly goose. Or thousands of hundreds of thousands.

  14. I know that there are dust mites in pretty much any food immediately upon being exposed to air. Yet, I still eat air-exposed food.

    Does that mean I can’t say my consumption of dust mites is inadvertent?

  15. Do we have this kind of pearl clutching over the innocent people caught up in normal criminal wiretapping investigations? How do the police handle the extraneous data in those cases?

    That would seem to be something that might be useful to explore in stories like this.

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