NSA Loophole Allows Warrantless Search for US Citizens’ Emails and Phone Calls
The previously undisclosed rule change allows NSA operatives to hunt for individual Americans’ communications using their name or other identifying information. Senator Ron Wyden told the Guardian that the law provides the NSA with a loophole potentially allowing “warrantless searches for the phone calls or emails of law-abiding Americans”.
Wyden, an Oregon Democrat on the Senate intelligence committee, has obliquely warned for months that the NSA’s retention of Americans’ communications incidentally collected and its ability to search through it has been far more extensive than intelligence officials have stated publicly. Speaking this week, Wyden told the Guardian it amounts to a “backdoor search” through Americans’ communications data.
“Section 702 was intended to give the government new authorities to collect the communications of individuals believed to be foreigners outside the US, but the intelligence community has been unable to tell Congress how many Americans have had their communications swept up in that collection,” he said.
“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.”
Wyden, along with his intelligence committee colleague Mark Udall, have attempted repeatedly to warn publicly about the ability of the intelligence community to look at the communications of US citizens, but are limited by their obligation not to reveal highly classified information.
But in a letter they recently wrote to the NSA director, General Keith Alexander, the two senators warned that a fact sheet released by the NSA in the wake of the initial Prism revelations to reassure the American public about domestic surveillance was misleading.
In the letter, they warned that Americans’ communications might be inadvertently collected and stored under Section 702, despite rules stating only data on foreigners should be collected and retained.
“[W]e note that this same fact sheet states that under Section 702, ‘Any inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorised purpose nor evidence of a crime,’” they said.
“We believe that this statement is somewhat misleading, in that it implied the NSA has the ability to determine how many American communications it has collected under Section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.”
In so far, in every substantial claim by Snowden via Greenwald, they have proven to be true.