When Edward Snowden provided the Washington Post and the Guardian unprecedented access to documents detailing National Security Agency (NSA) global surveillance operations, the one everyone focused on was the secret U.S. Foreign Intelligence Surveillance Court orders to furnish the phone records of every person in the country.
Back then, the government’s line was that it was just the metadata of the records, not the content. That is, who called who, at what time, from where to where, etc. but not the actual contents of the phone conversations.
Right after the story broke, on June 6, 2013, Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, rushed to cameras to tell anyone who would listen that: “[T]his is just metadata. There is no content involved.”
On June 13 that year, syndicated radio talk show host Mark Levin questioned the constitutionality of even the bulk collection of the metadata, saying if the agency was going after content, we had even bigger problems.
“If they were tapping our phones, it would be East Germany already. It would be Cuba. It’d be over,” Levin declared.
At a June 12, public hearing of the Senate Appropriations Committee that year, Feinstein asked NSA director Gen. Keith Alexander to confirm the government’s cover story. She asked, “It’s my understanding you have the metadata, you have the records of what appears on a phone bill, and if you want to go to the content, then you have to get a court order.”
Alexander responded, “It’s correct,” adding later, “Sen. Feinstein, if you want to get the content, you’d have to get a court order.”
Well, not exactly.
Turns out, not all of the documents that Snowden gave to the Post and Guardian had been revealed publicly in 2013. There are more. And what new documents show is not just the metadata of U.S. citizen communications, but the actual contents of them.
As just revealed by the Post on July 5, “The Post reviewed roughly 160,000 intercepted e-mail and instant-message conversations, some of them hundreds of pages long, and 7,900 documents taken from more than 11,000 online accounts.”
Of those, “Many of them were Americans. Nearly half of the surveillance files, a strikingly high proportion, contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents. NSA analysts masked, or ‘minimized,’ more than 65,000 such references to protect Americans’ privacy, but The Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S. residents.”
50 U.S. Code § 1881a requires that NSA intercepts that happen to include U.S. citizen communications be “minimized” to conceal their identities. The trouble is that, according to the Post, “The raw data is stored intact in NSA databases.”
Meaning, the communications of U.S. citizens are being recorded, without any warrant being issued by a court, for later use. You know, just in case.
This confirms the account of Tim Clemente, a former FBI counterterrorism agent, on May 1 on CNN’s Out Front with Erin Burnett.
Burnett asked if the government could listen in, after the fact, to telephone conversations between Katherine Russell, widow of the deceased Boston terrorist bombing suspect, Tamerlan Tsarnaev, and her late husband.
Clemente nonchalantly claimed it was possible: “[T]here is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation.”
Burnett was shocked, asking again: “So they can actually get that? People are saying, look, that is incredible.”
Clemente replied, “No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not.”
It is hard to contrive that this would be allowable under the Constitution’s Fourth Amendment protections. In 2012, the Supreme Court forbade police from GPS tracking a motor vehicle without a warrant as in U.S. v. Jones, but then allow the NSA to record everything without any probable cause for later use. More recently, in 2014’s U.S. v. Wurie, the high court found that police could not search the contents of cell phones without a separate warrant, even if the suspect has already been arrested.
In 2013’s Klayman v. Obama, Judge Richard Leon of the U.S. District Court for the District of Columbia struck down the metadata collection program as unconstitutional, calling the program “almost Orwellian.” The government has filed an appeal in the U.S. Court of Appeals for the District of Columbia. Klayman attempted to bypass that court and take his case directly to the Supreme Court, but it passed on the opportunity to take up a case, preferring to let the appeals process take its course.
All this was before the latest disclosures that it is not just the metadata, but the bulk collection and storage of the content of U.S.-based communications in question.
The latest disclosures from Snowden come after an April letter from National Intelligence Director James Clapper to Sen. Ron Wyden (D-Oreg.) that confirmed intelligence analysts had searched for U.S-based emails and phone calls within the databases that store the communications the government collects without a warrant, as reported by the New York Times.
“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,” Wyden said in a joint statement with Sen. Mark Udall (D-Colo.).
Perhaps Levin is correct. We’re East Germany after all.
Robert Romano is the senior editor of Americans for Limited Government.
