The documents confirm beyond all doubt that the NSA can and does incidentally sweep up domestic communications while targeting foreigners, and it has the authority to retain such communications for up to five years. The NSA has to destroy communications concerning “U.S. persons,” except for cases in which the communication intercepted is deemed to contain “foreign intelligence information”; shows evidence of a crime; relates to a security vulnerability; or contains information pertaining to harm of life or property. In some cases, the NSA can incidentally grab Americans’ communications—without any specific search warrant under the broad authority it has under the Foreign Intelligence Surveillance Act—and pass them on to the FBI or other agencies.
Drum examines the new documents:
It’s genuinely unclear how big a problem this stuff is. It’s plainly true that determining whether someone is a U.S. person is sometimes a judgment call, and it’s possible that mistakes are rare. What’s more, if collection of domestic content genuinely is inadvertent, and is only occasionally turned over to other agencies when there’s evidence of serious crime, we should all feel better about this. But we really have no way of knowing. That would require, say, an inspector general to gather this kind of information, and the IG has specifically declined to do this.
Why are these particular details highly classified state secrets? It’s an abuse of the system — a scandal in itself. What the NSA does with information it collects but isn’t allowed to have isn’t something that needs to be decided secretly and kept secret by self-interested national-security bureaucrats.
Cory Doctorow takes Clapper to task:
[The memos] expose the “truth” behind NSA director James Clapper’s assertion that “The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress.” This turns out to be technically, narrowly true, but false in its implication … As the Guardian’s publications make clear, the NSA operates under a baroque and carefully engineered set of guidelines that allow it to spy on Americans while insisting that it’s not spying on Americans.
And Dan Goodin focuses on the policies that specifically target people using online anonymity services:
[The leeway afforded to analysts] seems to work to the disadvantage of people who take steps to protect their Internet communications from prying eyes. For instance, a person whose physical location is unknown—which more often than not is the case when someone uses anonymity software from the Tor Project—”will not be treated as a United States person, unless such person can be positively identified as such, or the nature or circumstances of the person’s communications give rise to a reasonable belief that such person is a United States person,” the secret document stated.
And in the event that an intercepted communication is later deemed to be from a US person, the requirement to promptly destroy the material may be suspended in a variety of circumstances. Among the exceptions are “communications that are enciphered or reasonably believed to contain secret meaning, and sufficient duration may consist of any period of time during which encrypted material is subject to, or of use in, cryptanalysis.”