Backdoor Exploitation of Surveillance Rules Shows Need For More Reform

nsa surveillance camera

Director of National Intelligence James R. Clapper wrote a letter to Sen. Ron Wyden (D-Ore.) last month to address questions concerning what communications and information the government had collected. In the letter, he said that information was collected at times “using U.S. person identifiers” by looking at foreign intelligence that targets non-U.S. citizens, following “minimization procedures approved by the FISA Court as consistent with the statute and the Fourth Amendment.” This translates to information acquired without a warrant, proof of what was referred to, and criticized by, Wyden as a “backdoor search” loophole in the past.

It is now clear to the public that the list of ongoing intrusive surveillance practices by the N.S.A. includes not only bulk collection of Americans’ phone records, but also warrantless searches of the content of Americans’ personal communications. This is unacceptable,” Wyden and Sen. Mark Udall (D-Col.) said in a joint statement. “It raises serious constitutional questions, and poses a real threat to the privacy rights of law-abiding Americans.” They go on to explain that intent of Section 702, under which they are obtaining communications information, is meant only “to target foreign communications,” but that the government is instead using it to search “for the phone calls or emails of specific Americans and circumventing traditional warrant protections.”

This is just the latest in an ongoing stream of criticism of the U.S. intelligence practices following former contractor Edward Snowden’s release of NSA documents, sparking heavy criticisms of U.S. surveillance practices both within the U.S. and without. This led to President Barack Obama’s speech in January on reforming intelligence programs and putting limitations on areas that had gotten out of hand. This particular case is one that came up at a hearing of the Privacy and Civil Liberties Oversight Board, according to The New York Times, a federal watchdog group that examines government use of the FISA Amendments Act.

At the time, Brad Wiegmann, deputy assistant attorney general for the Justice Department’s National Security Division, said that the use of information passed scrutiny on the Fourth Amendment, but it saw criticism from Patricia Wald, a retired appeals court judge, at the oversight board hearing. She asked why it should not be required to get approval, at which time she was told that such a rule would create an operational burden that would displease the surveillance court since it would lead to a story of queries. “I suppose the ultimate question for us is whether or not the inconvenience to the agencies, or even the unhappiness of the FISA court, would be the ultimate criteria,” said Wald in response, according to The New York Times.

“Today’s admission by the Director of National Intelligence is further proof that meaninful surveillance reform must include closing the back-door searches loophole and requiring the intelligence community to show probable cuase before deliberately searching through data collected under section 702 to find the communications of individual Americans,” said Wyden and Udall’s statement, released Tuesday.

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