UPDATE–The NSA searches the data it collects incidentally on Americans, including phone calls and emails, during the course of terrorism investigations. James Clapper, the director of national intelligence, confirmed the searches in a letter to Sen. Ron Wyden, the first time that such actions have been confirmed publicly by U.S. intelligence officials.
Clapper, the head of all U.S. intelligence agencies, said in the letter that the NSA, which is tasked with collecting intelligence on foreign nationals, has searched the data that is has collected on Americans as part of its collection of foreign intelligence. The agency collects some Americans’ data, such as phone calls and emails, in the course of collecting the communications of foreign targets. But it has been unclear until now whether the NSA in fact searches those databases specifically for information on U.S. citizens.
Clapper made it clear in his letter that it does.
“As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702. which we declassified and released on August 21, 2013, there have been queries, using U.S. person identifiers. of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA,” Clapper said in a letter sent March 28 to Wyden (D-Ore.).
Wyden, a member of the Senate Intelligence Committee, has been a frequent critic of the NSA and its collection methods in recent years. During a hearing in January, Wyden asked whether the NSA ever had performed queries against its databases looking for information on U.S. citizens. Clapper’s letter was meant as an answer to the question. He did not say in the letter how many such searches the NSA had performed.
Responding to Clapper’s letter Wyden and Sen. Mark Udall (D-Colo.) isued a statement, saying that the DNI’s revelations show that the NSA has been taking advantage of a loophole in the existing law.
“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. “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.”
Section 702 of the Foreign Intelligence Surveillance Act is the measure that governs the way that the NSA can target foreigners for intelligence collection and spells out the methods it must use to ensure that data on Americans or other so-called “U.S. persons” are not collected. The NSA also must take pains to minimize the amount of information it gathers that isn’t relevant to a foreigner who is being targeted.
Clapper said in his letter that the NSA has followed the minimization procedures when it does query its databases on information related to U.S. persons. He also said that Congress had the chance to do away with the agency’s ability to run such queries, and didn’t.
“As you know, when Congress reauthorized Section 702, the proposal to restrict such queries was specifically raised and ultimately not adopted,” the letter says.
This story was updated on April 2 to include the statement from Wyden and Udall.