Image: Image: White House/Flickr
Director of National Intelligence James Clapper just admitted that the National Security Agency used a loophole in the Foreign Intelligence Surveillance Act to use the PRISM program spy on American citizens.
The FISA Act was written specifically to allow the NSA and other intelligence agencies to monitor communication between foreign nationals, but Clapper said in a letter to Oregon Senator Ron Wyden that the agency used a loophole in the law to spy on “US persons.”
NSA monitoring under the FISA Act was the main crux of PRISM, Edward Snowden’s first leak. Under the program, federal agents grabbed digital communications directly from Google, Facebook, Yahoo, Microsoft, and other huge internet companies as long as the government was “51 percent sure” of a target’s “foreignness.”
But Sen. Wyden and several others, including Colorado Sen. Mark Udall thought it was unlikely that the agency was only spying on foreign nationals; back in January, Wyden directly asked Clapper whether the NSA had directed any of its FISA inquiries on the “communications of specific Americans.”
Late last week, Clapper finally responded and admitted that “there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S.” This is, of course, yet another Clapper lie that has come out once someone has actually probed him.
The NSA used what’s known as Section 702 of the FISA act to obtain the data—and the act specifically states that the government may not use Section 702 to target any American anywhere in the world. However, Clapper said the NSA had done it anyway and that it was legal because the agency used “minimization procedures” to ensure the agency didn’t take too much information and that the data was obtained in order to eventually get at a foreign target.
Wyden, who has been one of the most outspoken lawmakers against bulk government surveillance, said the new revelation was a clear overstep of government power.
"It is now clear to the public that the list of ongoing intrusive surveillance practices by the NSA includes not only bulk collection of Americans' phone records, but also warrantless searches of the content of Americans' personal communications," Wyden and Udall said in a joint statement. "This is unacceptable. It raises serious constitutional questions, and poses a real threat to the privacy rights of law-abiding Americans. 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.”
Clapper wrote that Congress had the chance to close this loophole, but the “proposal to restrict such queries was specifically raised and ultimately not adopted.”
The fact that PRISM specifically targeted American citizens shouldn’t be a surprise, but it’s yet another example of the government using a poorly written law to do whatever it wants. This is the reason why civil liberty groups nitpick about specific language in proposed bills and fret about overly broad language in bills like CISPA and SOPA. Unless a law is ironclad about exactly what it’s prohibiting, the government can, and will, use whatever loopholes it finds to do what it wants.