James Clapper, Director of National Intelligence (DNI), confirmed the use of legal authorities to search actual communications of Americans without a warrant.
- There have been queries, using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States,” said Clapper.
The NSA collects data from Google, Apple, Facebook, Yahoo and other various communication channels through its Prism and Upstream program. Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), NSA can listen to phone calls as well as access emails of non-Americans outside of the United States.
But communications of Americans in direct contact with foreign target can also be collected without a warrant and many a times purely domestic communications can also be stored inadvertently—a case of ‘incidental collection.’
Clapper, however, added that these were done with legal approval of the court.
- These queries were performed pursuant to minimization procedures approved by the Fisa court and consistent with the statute and the fourth amendment,” he wrote.
The confirmation came in response to the queries raised by the US Senator, Ron Wyden (Democrat from Oregon), on the floor of congress in a heated discussion with the DNI about what the NSA can and cannot do.
- This is unacceptable. It raises serious constitutional questions, and poses a real threat to the privacy rights of law-abiding Americans,” said Wyden and another Senator, Mark Udall, a Colorado Democrat.
Ever since the leak of the classified NSA documents by its ex-contractor, Edward Snowden, the agency maintained that Americans need not worry about their privacy as they were not the prime target of their surveillance apparatus. This was also backed by President Obama.
- When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program’s about. As was indicated, what the intelligence community is doing is looking at phone numbers and duration of calls. They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism,” the President had said in June 2013.
The intelligence services had further insisted that the data collection program was only for foreigners.
- Now, with respect to the Internet and emails, this does not apply to U.S. citizens, and it does not apply to people living in the United States. And again, in this instance, not only is Congress fully apprised of it, but what is also true is that the FISA Court has to authorize it,” the President had emphasized.
But the latest confirmation by a top intelligence official is definitely outrageous. The Senators continued their tirade against the unconstitutional collection of data.
- If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure a warrant or emergency authorization before monitoring his or her communications. This fact should be beyond dispute.”
The Senators argued that in light of the confirmation from Clapper, the ‘Congress’ must ensure closure of the Section 702 loophole to avoid victimizing innocent Americans.
- Today’s admission by the Director of National Intelligence is further proof that meaningful surveillance reform must include closing the back-door searches loophole and requiring the intelligence community to show probable cause before deliberately searching through data collected under section 702 to find the communications of individual Americans,” they said.
The two senators on earlier occasions had failed to garner supports from their fellow Democrats. Dianne Feinstein, the Californian Democrat and who chairs the Senate intelligence committee had voiced her support for the NSA’s programs.
- With respect to analyzing the information lawfully collected under Section 702, however, the intelligence community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession,” she had said earlier in June 2012.