U.S. intelligence agencies searched the content of e-mails and other electronic communications of Americans without warrants, the nation’s top intelligence official told members of Congress.
The queries were part of efforts to obtain information about suspected foreign terrorists under a law that Congress passed in 2008, Director of National Intelligence James Clapper wrote in a March 28 letter to Senator Ron Wyden, an Oregon Democrat and one of the most vocal critics of government surveillance.
The spying is “unacceptable” and proves the existence of a loophole in surveillance law that allows the National Security Agency to illegally search the Internet communications and listen to the phone calls of Americans who may have no connection to terrorism, Wyden and Senator Mark Udall, a Colorado Democrat, said in an e-mailed statement today.
“It raises serious constitutional questions and poses a real threat to the privacy rights of law-abiding Americans,” the lawmakers said. “Senior officials have sometimes suggested that government agencies do not deliberately read Americans’ e-mails, monitor their online activity or listen to their phone calls without a warrant. However, the facts show that those suggestions were misleading.”
The disclosure is significant because it potentially opens up a new line of public and congressional scrutiny into NSA spying. Until now, most of the focus of public debate has been on restraining the NSA’s ability to collect and store bulk phone records, which include numbers dialed and call durations without the contents of conversations.
The NSA collects phone records from Verizon Communications Inc. (VZ) and other carriers and operates a program known as Prism under which it compels Google Inc. (GOOG), Facebook Inc. (FB) and other Internet companies to hand over data about users suspected of being foreign terrorists, according to documents exposed since June by former government contractor Edward Snowden.
The 2008 law amending the Foreign Intelligence Surveillance Act allows the NSA to intercept the communications of suspected foreign terrorists without warrants. The data can include the communications of U.S. citizens as long as they aren’t the target of an investigation. A warrant is required to search the communications of Americans who are the focus of an investigation.
Wyden and Udall have long warned that intelligence agencies use the loophole to monitor the communications of Americans without warrants and said legislation is needed to prevent that type of spying.
“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 said.
Requiring the NSA to obtain court warrants in order to search its database of e-mails and other Internet communications would be burdensome and delay investigations of terrorist plots, officials in President Barack Obama’s administration told a U.S. privacy panel March 19.
“Having that type of gap might actually create a blind spot for us in terms of intelligence collection,” James Baker, general counsel for the Federal Bureau of Investigation, told the Privacy and Civil Liberties Oversight Board during a hearing.
The board is examining the legality and effectiveness of Internet spying under FISA. A majority of the five-member board concluded in January that the bulk collection of phone records was illegal and wasn’t effective in stopping any terrorist plots.
The secret court overseeing NSA spying would be “extremely unhappy” if it had to give approval every time the NSA wanted to search the database of Internet data, Robert Litt, the top lawyer for U.S. intelligence agencies, told the privacy board.
The number of times that database is searched is “considerably larger” than the database of phone records, Litt said. He also said the collection of Internet data is “one of the most valuable collection tools we have.”
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