NSA Searched Americans’ Personal Communications Without Warrants, Say Senators

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 electonic communications. 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.