Since leaked secret documents revealed the vast surveillance programs of the National Security Agency, senior intelligence officials have asserted before congressional panels that the agency targets only non-U.S. citizens and that Americans’ privacy rights are being protected. The government, they said, cannot read Americans’ emails or any other communications without a warrant.
But new documents obtained by the Guardian and Washington Post newspapers show there are certain situations in which the NSA can read or listen to Americans’ communications, retain them and even use them in investigations.
When the NSA vacuums up communications records as part of an investigation of a foreign target, it may accidentally obtain domestic correspondence as well. Officials have assured the public this month that when that happens, the communications are destroyed and that no American's records can be scrutinized without a warrant. But, according to documents showing NSA protocol and approved by the secretive Foreign Intelligence Surveillance Court, one of the checks in place to oversee the NSA’s spying activities, there are situations when the government can make use of “inadvertently” acquired communications.
As officials have alluded to in congressional hearings this month, the NSA does have a detailed set of guidelines for trying to avoid collecting domestic intelligence and how to dispose of that information when they get it accidentally. Those protocols are also outlined in the two new documents. But the documents also contain the exceptions.
According to the Guardian’s Glenn Greenwald, the NSA is allowed to:
• Keep data that could potentially contain details of U.S. persons for up to five years;
• Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
• Preserve "foreign intelligence information" contained within attorney-client communications;
• Access the content of communications gathered from "U.S.-based machine[s]" or phone numbers in order to establish if targets are located in the U.S., for the purposes of ceasing further surveillance.
In addition, the documents show that the NSA has broad authority to decide who it targets under Section 702 of the 2008 FISA Amendments Act, which provides the electronic spy agency with the legal authority to obtain bulk electronic communications data. Under Section 702, the communications must belong to non-U.S. citizens outside the United States but may include communications between a U.S. and a non-U.S. person as long as the American citizen is not the target.