NSA FISA Surveillance: Attention Shifts To Email Surveillance

In the fallout from leaks of the government’s surveillance programs by intelligence contractor Edward Snowden, attention and criticism has focused mainly on the revelation that the National Security Agency is amassing a giant database of Americans’ phone records, a program operated under authorities granted in the USA Patriot Act. Whereas a second program that was revealed, called PRISM, largely concerned foreign spying activities, the phone program irked lawmakers because it focused on domestic surveillance.

But that may soon change after two new reports this week revealed that the privacy of Americans’ communications is also a major concern with the National Security Agency’s overseas surveillance as well.

Since the programs came to light in June, the administration has stressed that spying activities authorized under the section 702 of the 2008 FISA Amendments Act, like the PRISM program, only collect foreign communications, or those of Americans who are in touch with a terrorism suspect. Moreover, the collection is only supposed to be used to go after foreign targets. As a result, lawmakers have largely accepted both the legality and the necessity of the program, which intelligence officials say has thwarted dozens of terrorist plots throughout the world.

But the latest reports show that under section 702, the NSA is actually sifting through Americans’ communications and possibly using the collected communications, such as emails and text messages, to go after targets in the United States. Officials have argued for months that under section 702 and PRISM, the government does not collect Americans’ communications, except accidentally, in what is called “incidental collection.” But government officials have said repeatedly that any domestic documents accidentally collected are immediately deleted according to court-approved rules, called “minimization procedures,” for handling these domestic records.

However, a report in the New York Times on Thursday and one in the Guardian on Friday suggest that the NSA is regularly searching the content of Americans’ communications without a warrant. According to the Times report, the NSA searches the content of nearly all text communications, including emails, coming in and out of the United States, for specific references to terrorist groups or persons under investigation. This means that the content of a vast amount of Americans’ emails is being mined for clues in terrorism investigations without a warrant. Communications that don’t have references to terrorist targets, such as a name or email address, are deleted rather than stored.

A second report from the Guardian, based on more leaked documents from Snowden, revealed a loophole in the minimization procedures that allows the NSA to search data collected under section 702 to locate the communications of persons in the United States, rather than in the pursuit of a non-American target outside the United States. "Once Americans' communications are collected, a gap in the law that I call the 'back-door searches loophole' allows the government to potentially go through these communications and conduct warrantless searches for the phone calls or emails of law-abiding Americans,” Sen. Ron Wyden, D-Ore., who has been advocating for more restrictions on the NSA’s operations, told the Guardian. "I believe that Congress should reform Section 702 to provide better protections for Americans' privacy, and that this could be done without losing the value that this collection provides," he said.

Thus far, legislation has been put forward to roll back the domestic phone program as well as increase government transparency and reform the secret court that oversees the government’s requests for data in these investigations. But section 702 has largely remained out of the limelight. When members of Congress return from their August break in September, the government’s use of its section 702 authorities may become yet another area lawmakers will seek to reform.