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NSA Ability to Intercept Domestic Communication Raises More Privacy Questions

August 21, 2013 at 12:00 AM EST
Newly declassified NSA documents show that for three years surveillance programs scooped up more than 50,000 personal emails per year from Americans who had no relation to terrorism. Margaret Warner talks to Siobhan Gorman of The Wall Street Journal about the significance of NSA's broad capability to intercept domestic messages.
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RAY SUAREZ: Now to new revelations about government surveillance of Internet traffic throughout the U.S.

Margaret Warner has the story.

MARGARET WARNER: The nation’s top intelligence official today declassified documents showing that, for three years, the National Security Agency, or NSA, collected more than 50,000 e-mails a year between Americans with no connection to terrorism.

The Foreign Intelligence Surveillance Court in 2011 ruled the collection methods unconstitutional. And today’s documents show changes the NSA made so that the program, designed to target foreign intelligence, could continue.

The release came hours after The Wall Street Journal reported the NSA has built a surveillance network covering roughly 75 percent of all U.S. Internet traffic, including e-mails, Web searches and Internet phone calls of Americans.

And we’re joined now by Siobhan Gorman, intelligence correspondent for The Wall Street Journal.

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And, Siobhan, thank you for joining us.

What is significant about these newly declassified documents and why were they released today?

SIOBHAN GORMAN, The Wall Street Journal: Well, these documents show-the most significant example that we have seen of the problems that can occur when NSA has this sort of broad capability to intercept messages in the United States.

Why it happened today is a little bit unclear, although it may be a response to a partial document that was part of the Snowden leaks that came out last week. And it may have been NSA’s desire to raise — to at least put some more context around that little snippet that was released last week that had just said that the court ruled that NSA had violated the Constitution with a particular type of collection program, but didn’t really explain why or what had been done to resolve the problem.

MARGARET WARNER: So now we actually can read that court’s opinion in 2011. What was the tone of that?

SIOBHAN GORMAN:  The tone was a pretty sharp rebuke.

It talked about the — it criticized the government for not taking stronger measures to protect privacy. It criticized the government for not even really trying to find new ways to collect information so it would not have these kind of violations.

And in one of its sharpest rebukes, it said, you know, this is the third time in the last — in less than three years that we feel that the government has misrepresented its collection programs to the court. So we have heard about sort of the checks that the court places on surveillance. And this opinion shows on the one hand that the court does provide a major check, but on the other it’s after the fact and that NSA has a fair amount of leeway also to construct its surveillance programs, and there’s a certain amount of self-policing that goes on there.

MARGARET WARNER: And so this program now continues. Did the fixes the NSA made, did they completely eliminate the problem of e-mails between Americans here in the U.S. getting through the — getting through and being looked at by the NSA?

SIOBHAN GORMAN:  Well, it minimized the problem.

The collection is still happening. And so the probability that wholly domestic communications are being picked up by the NSA is just the same as it has been at least since 2008. The way that NSA handles those communications now is somewhat different. They are trying to basically segregate and quarantine the sets of communications that are likely to contain wholly domestic communications and handle them so that they don’t get distributed throughout NSA databases or into intelligence reports and make their way kind of throughout the system in a searchable form.

MARGARET WARNER: OK. And, now, your piece, the one you co-authored today, talked about a much broader program, because you weren’t talking just about e-mails, but also Internet searches and Skype-like phone calls.

Is — how does that work? How is — how are the communications between or among Americans being protected? Or are they, as I think you reported, getting through to the NSA?

SIOBHAN GORMAN:  Right.

Well, actually — yes, what’s interesting is that this court ruling and these disclosures actually prove a point that a number of people I had spoken with were making. And the violations that the court order describes bear directly on the program that I described today.

The program that I described today is the same one, essentially. It’s a set of programs, but those set of activities are what the court was criticizing. And what it is, is a set of arrangements that the National Security Agency has entered into under a court order with major U.S. telecommunications providers.

Collectively, those providers cover 75 percent of United States communications. The NSA and the telephone companies have constructed sort of a two-step filtering system that means that the telecommunications companies do the first cut of filtering based on the guidelines that NSA provides under the court order, and then they pass a subset of that information to NSA. They call it a data stream.

NSA then takes that data stream and filters it again against specific criteria that it has, such as an e-mail address or a set of Internet protocol addresses.

MARGARET WARNER: And so in that data stream that gets to the NSA and then in the part of that data stream that the NSA store or analyzes, are there communications or Internet searches done by Americans strictly domestic in nature or between Americans in the U.S.?

SIOBHAN GORMAN:  Yes, the documents that we saw today show that that whole process that I just described has a flaw when it comes to protecting American communications.

And that is that certain types of communications, just because of the way technology has evolved, are bundled together. And so you may end up with a bundle of communications where some small portion of it contains information that is responsive to what NSA is looking for with its foreign intelligence filters, but they have to hand over the whole bundle of communications, which may also include wholly domestic communications.

So, the problem is you can’t decouple some of these sets of communications.

MARGARET WARNER: Well, Siobhan Gorman, Wall Street Journal, thank you.

SIOBHAN GORMAN:  Thank you.