Loophole Shows That, Yes, NSA Has 'Authority' To Spy On Americans — Directly In Contrast With Public Statements

from the and,-another-one dept

Right, so remember that claim yesterday from Barack Obama about how there is no domestic surveillance program? And remember in our post we noted that such a statement might come back to bite him, seeing that Snowden had leaked somewhere between 15,000 to 20,000 more documents to Glenn Greenwald and somewhere in there, it seemed like there was a decent chance there was evidence that Obama was lying? Right, so, funny story… this morning, James Ball and Spencer Ackerman over at the Guardian have published the details of a neat little loophole that does, in fact, give the NSA “authority” to run searches on Americans without any kind of warrant. This is due to a “rule change” in 2011.

The focus here is on Section 702 under the FISA Amendments Act, which is the authority that the PRISM program is under. Ever since the initial leaks, the defenders of the NSA have repeatedly stated that 702 only applies to non-US citizens who are outside the US. But as the “update” above notes, there was a change to the rules in late 2011 which allows for queries on US persons. As Senator Wyden told the Guardian, this “loophole” now directly allows “warrantless searches for the phone calls or emails of law-abiding Americans.”

This also seems reminiscent of our point on Wednesday, in which we noted that every time the NSA is asked about its ability to spy on everyone, it answers about its authority. And, here’s evidence that it has clearly been given the “authority” to spy on Americans, contrary to the very clear language of the law.

Also, the timing of this seems interesting. Earlier, we’d noted that the NSA’s massive data collection program, Stellar Wind, had been shut down in 2011. And… right about that time suddenly a new law is put in place allowing 702 searches to happen on US persons? I’m sure that’s just a complete coincidence…

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Comments on “Loophole Shows That, Yes, NSA Has 'Authority' To Spy On Americans — Directly In Contrast With Public Statements”

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29 Comments
Anonymous Coward says:

Re: Re:

Without resorting to the “revenge porn of the nutjobs” kind of consequences, no.

Which would be both the only wrong response, and perhaps the only available response.

Think on that. A revolution is rapidly becoming a necessity in one of the most “stable” ‘democracies’ in the world.

Anonymous Coward says:

Re: Re: Re:

Without resorting to the “revenge porn of the nutjobs” kind of consequences, no.

At this point, I’d settle for at least someone bringing charges against them. We all know how punishment works for the “haves” (there is none). But at least making them go through the process would be a welcome change.

Anonymous Coward says:

Re: Re: Indictments...

In this case the 3-power setup has been more or less put out of power:

The judiciary is a “secret court” with no real connection to the real judiciary.

The legislative is a select few from congress who can deny the rest of the legislative access on account of their field being littered with confidential and secret information. The system relies on the priviledged giving access to relevant information for a subject to be actually discussed and that is not happening.

The executive is only truely accountable to the people and since this field is covered in information that cannot legally be shared with the people, there is no real limit to their suggestions if they can keep the legislative select few greased.

Anonymous Coward says:

It does say they can't run USP queries?

am i reading it wrong? it says they can run USP queries but that they cant until the right oversight has been sorted out. Or am i reading it worng. I mean obviously i dont suppose the right oversight has been sorted out and dont know enough about your constitution to know whether saying ‘you can, but not yet’ is the bad thing.
Personally i think this whole NSA/GCHQ thing is awful and i will continue to vote Green as much as i can but…

Anonymous Coward says:

Re: It does say they can't run USP queries?

You better read the Guardian article for a better understanding of the subject, but the gist of it is this:

The NSA et al told us can’t run queries on American citizens under the PRISM program unless they were in direct contact with foreigners. PRISM is directed at foreigners and foreign contacts, they claimed.

Well, this new tidbit shreds that notion because it points out that in 2011 there was a rule change that allows specific US persons to be targeted. You see the inconsistency between the statements and the reality?

At least they bothered to try to implement some sort of oversight over this program, but I doubt it was in any way effective, given their track record as of late…

Anonymous Coward says:

Re: It does say they can't run USP queries?

It says ANALYSTS (ie. contractors) can’t run queries on USP’s until THE NSA comes up with an oversight program that is approved by the DOJ and ODNI. It says nothing about the NSA itself being prohibited from running queries without the oversight process in place. But if the NSA gets to create the oversight process, then there really isn’t much point to it then is there. That’s like my 6 year old daughter getting to decide if she should be punished for doing something she’s not supposed to do. And the DOJ and ODNI having to approve it doesn’t make it any better. They never benefit from the power of the access to NSA data and have perfectly clean history of not never abusing power and instead telling the NSA, “Oh no, that’s TMI. We don’t want to be able to know any of that stuff.” Riiiiiiiight.

Vidiot (profile) says:

More fundamental question

This raises the semantic issue of “lawmaking” vs. “rulemaking”. The Patriot Act (clue: “Act”) was an enacted law, with, for better or worse, at least a modicum of publicly-witnessed debate; can its fundamental provisions be oh-by-the-way amended by a mere rules change? How far can “rules” go in shaping policy and practice, before the scope is exceeded, and the only remedy is to amend or enact an actual law?

Rob says:

Re: Wrong loophole

“I don’t buy that collecting all the data on U.S. cititzens is consistent with the Constitution”

So? Like it’s been for a while now: You can’t prove they’re collecting data on anyone because that’s a state secret. Therefore no one has standing to challenge the constitutionality of the data collection. Something can’t be ruled unconstitutional until it’s challenged. Ergo, whether or not this is consistent with the Constitution is moot.

And even that doesn’t matter. Secret court doesn’t care what we think is constitutional even if we had a truckload of proof.

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