The Obama administration secretly got the okay from a surveillance court in 2011 to reverse restrictions on how the NSA uses intercepted phone calls and e-mails, which allowed the agency to search deliberately for U.S. citizens' communications, according to interviews with government officials and recently declassified material.
In addition, the Washington Post reports, the court extended the time the NSA is permitted to keep intercepted U.S. emails and phone calls from five years to six years — and more under special circumstances, the documents say.
Among the documents is a recently released 2011 opinion by U.S. District Judge John D. Bates, who was then the chief judge of the Foreign Intelligence Surveillance Court.
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What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.
Together the permission to search and to keep data longer expanded the NSA’s authority in significant ways without public debate or any specific authority from Congress. The administration’s assurances rely on legalistic definitions of the term “target” that can be at odds with ordinary English usage. The enlarged authority is part of a fundamental shift in the government’s approach to surveillance: collecting first, and protecting Americans’ privacy later.
“The government says, ‘We’re not targeting U.S. persons,’ ” said Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology. “But then they never say, ‘We turn around and deliberately search for Americans’ records in what we took from the wire.’ That, to me, is not so different from targeting Americans at the outset.”
The court decision allowed the NSA “to query the vast majority” of its e-mail and phone call databases using the e-mail addresses and phone numbers of Americans and legal residents without a warrant, according to Bates’s opinion.
The queries must be “reasonably likely to yield foreign intelligence information.” And the results are subject to the NSA’s privacy rules.