Well it turns about that top secret rules allows NSA to collect domestic U.S. data without a warrant. At least that’s what the Guardian is reporting. It’s problematic in light of the assurances from President Obama and his advisers that the NSA couldn’t access Americans’ calls or email information without warrants.
Via Guardian: Top secret documents submitted to the court that oversees surveillance by US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information “inadvertently” collected from domestic US communications without a warrant.
The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.
The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.
The procedures cover only part of the NSA’s surveillance of domestic US communications. The bulk collection of domestic call records, as first revealed by the Guardian earlier this month, takes place under rolling court orders issued on the basis of a legal interpretation of a different authority, section 215 of the Patriot Act.
The Fisa court’s oversight role has been referenced many times by Barack Obama and senior intelligence officials as they have sought to reassure the public about surveillance, but the procedures approved by the court have never before been publicly disclosed.
The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.
However, alongside those provisions, the Fisa court-approved policies allow the NSA to:
• Keep data that could potentially contain details of US persons for up to five years;
• Retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
• Preserve “foreign intelligence information” contained within attorney-client communications;
• Access the content of communications gathered from “U.S. based machine[s]” or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.
The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans’ call or email information without warrants.
The documents also show that discretion as to who is actually targeted under the NSA’s foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors – though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis.