Fisa court submissions show broad scope of procedures governing NSA’s surveillance of Americans’ communication
Top secret documents submitted to the court that oversees surveillanceby US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information “inadvertently” collected from domestic US communications without a warrant.
The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.
Authorized by Section 702 of the amended Foreign Intelligence Surveillance Act (FISA), the program did away with the traditional individual warrant for each foreign suspect whose communications would be collected in the United States. In its place, the FISA court, which oversees domestic surveillance for foreign intelligence purposes and whose proceedings are secret, would certify the government’s procedures to target people overseas and ensure citizens’ privacy.
It issues a certificate, good for one year, that allows the NSA to order a U.S. Internet or phone company to turn over over e-mails, phone calls and other communications related to a series of foreign targets, none of which the court approved individually.
The National Security Agency has spent years demanding that companies turn over their data. Now, the spy agency finds the shoe is on the other foot. A defendant in a Florida murder trial says telephone records collected by the NSA as part of its surveillance programs hold evidence that would help prove his innocence, and his lawyer has demanded that prosecutors produce those records. On Wednesday, the federal government filed a motion saying it would refuse, citing national security. But experts say the novel legal argument could encourage other lawyers to fight for access to the newly disclosed NSA surveillance database.
“What’s good for the goose is good for the gander, I guess,” said George Washington University privacy law expert Dan Solove. “In a way, it’s kind of ironic.”
The Guardian has done it once again, this time presenting two July 2009 documents signed by none other than Eric Holder which lay out under what conditions the NSA is allowed to make use of information “inadvertently” collected from domestic US communications without a warrant. The documents detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance. “The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.”
To the NSA’s credit, the disclosure shows that data collected on US persons under the foreign intelligence authority must be destroyed, and the extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection. The problems are when one sees the cornucopia of FISA court-approved loopholes that can be exploited. Among them:
- Keep data that could potentially contain details of US 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 US, for the purposes of ceasing further surveillance.
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