Just the “Facts”: What We Know About the NSA Spying on Americans

August 26, 2013
In the wake of former NSA contractor Edward Snowden’s revelations about the government’s widespread capability to gather, store and analyze emails, phone calls and internet traffic, the Obama administration has repeatedly suggested the public needs to understand “the facts.” Read our previous story, “How Good Are the ‘Checks’ on NSA Surveillance?” Let us know in the comments if you’ve seen other statements you think we should check out.

“There is no spying on Americans,” Obama told late-night comedian Jay Leno in an interview earlier this month.

But as more details emerged about the government’s extensive surveillance network last week, the National Security Agency admitted that there had, in fact, been “willful violations” of its own restrictions on spying on Americans, but that those instances had been “very rare,” according to Bloomberg News.

This weekend The Wall Street Journal reported additional details: Its story suggested NSA analysts broke the rules to read their love interests’ e-mails and other communications often enough that the behavior was given a nickname — LOVEINT. (The intelligence community tends to attach -INT to their intelligence monikers. Information gleaned from people, for example, is called HUMINT.)

The NSA says it punished these transgressions with administrative sanctions, and in some cases, termination.

In the past year, the NSA has repeatedly denied that it is collecting data on U.S. citizens. In March 2012, NSA chief Keith Alexander told Congress that his agency doesn’t even have the ability to collect data on Americans.

This past March, James Clapper, the director of the Office of National Intelligence, the top intelligence official in the country, testified that the NSA does “not wittingly” collect data on Americans. After the Snowden leaks he sent a letter to Sen. Dianne Feinstein, apologizing for his “clearly erroneous” testimony, because he “simply didn’t think” of a major provision of the Patriot Act.

Officials had even told the Foreign Intelligence Surveillance Court, the legal entity set up to oversee it, that the NSA gathered no communications between people in the U.S.

In a declassified FIS Court filing last week, the court said it had since learned that was not the case. “There is no question that the government is knowingly acquiring Internet transactions that contain wholly domestic communications through its upstream collection,” the ruling found.

The NSA gathers intelligence under Section 702 of the FISA Amendment Act, which allows the NSA to gather data on non-U.S. citizens outside the U.S. It also gathers tens of thousands of “domestic communications” by and from Americans in its normal gathering of foreign surveillance, according to Wednesday’s declassified court finding.

According to documents leaked by former NSA contractor Edward Snowden, the government has also been collecting Americans’ phone records in bulk, and scooping up their emails, browsing history and social-media activity.

Since 2011, the NSA has determined on its own that it has the legal authority to search within the data it collects using U.S. citizen names and other identifying information, according to an Aug. 9 report by the Guardian, citing a document from Snowden. The document said analysts wouldn’t be able to start those searches until the NSA developed an oversight process, but it’s unclear when or whether it did so.

In the wake of Snowden’s leaks, the Obama administration has set up a review board to examine the NSA’s policies that is mostly composed of former Obama administration officials. It will provide an interim report in 60 days and a final report by the end of the year.

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