In the waning years of the Obama administration, the National Security Agency (NSA) swept up and reviewed the communications of Americans to an extent previously unknown, in direct violation of the Constitution and its own revised guidelines, recently unsealed documents reveal.
The NSA is authorized to collect intelligence on foreigners under section 702 of the Foreign Intelligence Surveillance Act (FISA). With this type of intelligence collection, it is virtually inevitable that Americans’ communications will be incidentally intercepted, however there are procedures in place to keep those communications protected and anonymous.
Typically, when an American citizen is swept up in NSA surveillance, they are supposed to be “masked” to protect their identity, but there are large loopholes in place that allow the NSA to spy on Americans without a warrant or any probable cause whatsoever.
When the NSA conducts what is known as “upstream collection” of internet communications, it is impossible to target a single email, instead sweeping up “packets” of data containing several messages. The NSA is supposed to sift through the data packets and discard all but the targeted email(s).
That alone poses some privacy issues, as before they are discarded the NSA can momentarily see the contents of the communications, but, when coupled with the NSA’s targeting practices, the problem expands to a serious violation of American constitutional rights.
Before the “sift and discard” procedure takes place, upstream collections are stored in databases which the NSA uses when it seeks intelligence on a particular target. To find what it is looking for, the agency enters key terms, known as “selection terms,” usually an email address or phone number related to the target. However, for years American intelligence agencies have not only looked at communications to and from a targeted individual, but any communication related to the target. That means the NSA has a much wider berth to analyze Americans’ communications.
In summary, the NSA incidentally collects and stores intelligence on Americans when conducting surveillance on foreign targets. The information is supposed to either be masked or discarded, but the way the NSA uses its databases allows the agency to get around the rules and essentially spy on American citizens.
But that is only the beginning.
In 2011, FISA procedures for the masking of American citizens’ identity were proving insufficient, most notably the use of identifiers of Americans as “selection terms” in NSA database searches. This prompted a rule change that “categorically prohibited NSA analysts from using U.S.-person identifiers to query the results of upstream Internet collection,” a FISA court opinion said.
After that change in procedure, the NSA was not supposed to use American selection terms in searching through its database of intercepted communications, but the agency did not follow the rules. The use of American identifiers was so widespread after the 2011 revision that by the time the Obama administration came to an end, the scope of the violations had still not been determined.
“The rules from 2011 forward were simple: Do not use American identifiers,” writes National Review’s Andrew McCarthy. “Yet NSA used them — not once or twice because some new technician didn’t know better. This violation of law was routine and extensive, known and concealed.”
There was a three-fold increase in NSA data searches about Americans in 2011, the same year the masking procedures were supposed to be revised and improved.
According to internal documents obtained by Circa’s John Soloman and Sara Carter, the illegal spying may involve up to 5 percent, or one in 20, of all NSA database searches derived from upstream collection, what amounts to a massive quantity of data.
The Obama administration was aware of the abuses, but did not disclose them until late October 2016, just months before the former president left office.
Under a court deadline to renew surveillance authorities under FISA, officials in the Obama administration apparently stalled and stonewalled to such an extent that the court would accuse the administration of “an institutional lack of candor” regarding “a very serious Fourth Amendment issue.”
In an attempt to ensure that only foreign communications are targeted, Trump’s DOJ has proposed a new change in procedures which have been approved by the FISA court. That change would eliminate searches that pertain to anything about the target in question, limiting the NSA to searching only for people in direct communication with the target.
Adding to the list of unauthorized wars in seven countries, an unprecedented crackdown on whistle blowers, other NSA spying abuses, targeting political enemies with the IRS and a number of other scandals, the Obama administration has left behind quite the legacy.