Someone suggested that latest lie told by President Barack Obama on the Jay Leno Show that other night stating, “There is no spying on Americans. We don’t have a domestic spying program,” was up there with the 10 greatest lies ever told. That fallacy of the president’s declaration was made very obvious in a New York Times article by Charlie Savage on the latest and greatest NSA domestic surveillance program. The NSA has been copying virtually all overseas messages that Americans send or receive, scanning them to see if they contain any references to people or subjects the agency thinks might have a link to terrorists.
Hints of the surveillance appeared in a set of rules, leaked by Mr. Snowden, for how the N.S.A. may carry out the 2008 FISA law. One paragraph mentions that the agency “seeks to acquire communications about the target that are not to or from the target.” The pages were posted online by the newspaper The Guardian on June 20, but the telltale paragraph, the only rule marked “Top Secret” amid 18 pages of restrictions, went largely overlooked amid other disclosures.
In an opinion by the New York Times Editorial Board, these messages could be very private and no connection to terrorists or terrorist activity:
That could very well include innocent communications between family members expressing fears of a terror attack. Or messages between an editor and a reporter who is covering international security issues. Or the privileged conversation between a lawyer and a client who is being investigated.
Data collection on this scale goes far beyond what Congress authorized, and it clearly shreds a common-sense understanding of the Fourth Amendment. It’s as if the government were telling its citizens not to even talk about security issues in private messages or else they will come to the attention of the nation’s spies.
When “Target” Means Searching a Specific Person’s Communications
First, at least this much is clear: a “target” under the FA (FISA Amendments Act ) must be (a) a non-US person and (b) not physically located within the United States. A “person,” for purposes of the FAA, includes individuals as well as “any group, entity, association, corporation, or foreign power.” Under the FAA, the government can thus “target” a single individual (e.g., Vladimir Putin), a small group of people (e.g., Pussy Riot), or a formal corporation or entity (e.g., Gazprom).
So, when the NSA decides to “target” someone (or something), it turns its specific surveillance vacuum at them. [..]
When “Target” Means Searching Everyone’s Communications
Once a target is established, the NSA believes it can expand the sweep of its interception far more broadly than the communhttp://www.guardian.co.uk/world/interactive/2013/jun/20/exhibit-a-procedures-nsa-documentications of the particular, identified target. Notably, the NSA’s procedures state (emphasis added):
[I]n those cases where NSA seeks to acquire communications about the target that are not to or from the target, NSA will either employ an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas, or it will target Internet links that terminate in a foreign country.
In plain English: the NSA believes it not only can (1) intercept the communications of the target, but also (2) intercept communications about a target, even if the target isn’t a party to the communication. The most likely way to assess if a communication is “about” a target is to conduct a content analysis of communications, probably based on specific search terms or selectors.
And that, folks, is what we call a content dragnet.
Importantly, under the NSA’s rules, when the agency intercepts communications about a target, the author or speaker of those communications does not, thereby, become a target: the target remains the original, non-US person. But, because the target remains a non-US person, the most robust protection for Americans’ communications under the FISA Amendments Act (and, indeed, the primary reassurance the government has given about the surveillance) flies out the window. If you communicate about a target of NSA surveillance, your citizenship is irrelevant: the only thing standing between you and NSA surveillance is your IP address or the fiber optic path through which your communications flow.
Jameel Jaffer, American Civil Liberties Union deputy legal director, made the following comments about the latest revelations:
“The program described by the New York Times involves a breathtaking invasion of millions of people’s privacy. The NSA has cast a massive dragnet over Americans’ international communications, collecting and monitoring all of them, and retaining some untold number of them in government databases. This is precisely the kind of generalized spying that the Fourth Amendment was intended to prohibit.
“The government’s scrutiny of virtually every international email sent by Americans will have extraordinary consequences for free expression. Americans will inevitably hesitate to discuss controversial topics, visit politically sensitive websites, or interact with foreigners with dissenting views. By injecting the NSA into virtually every cross-border interaction, the U.S. government will forever alter what has always been an open exchange of ideas.”
“There is no spying on Americans. We don’t have a domestic spying program,” is right up there with “I am not a crook” and “I did not have sex with that woman.”