Backdoor men
by digby
Remember this?
“When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program’s about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content.”
That was President Obama back in June. Yesterday James Clapper said otherwise:
US intelligence chiefs have confirmed that the National Security Agency has used a “back door” in surveillance law to perform warrantless searches on Americans’ communications.
The NSA’s collection programs are ostensibly targeted at foreigners, but in August the Guardian revealed a secret rule change allowing NSA analysts to search for Americans’ details within the databases.
Now, in a letter to Senator Ron Wyden, an Oregon Democrat on the intelligence committee, the director of national intelligence, James Clapper, has confirmed for the first time the use of this legal authority to search for data related to “US persons”.
“There have been queries, using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States,” Clapper wrote in the letter, which has been obtained by the Guardian.
“These queries were performed pursuant to minimization procedures approved by the Fisa court and consistent with the statute and the fourth amendment.”
The legal authority to perform the searches, revealed in top-secret NSA documents provided to the Guardian by Edward Snowden, was denounced by Wyden as a “backdoor search loophole.”
Many of the NSA’s most controversial programs collect information under the law are affected by the so-called loophole. These include Prism, which allows the agency to collect data from Google, Apple, Facebook, Yahoo and other tech companies, and the agency’s Upstream program – a huge network of internet cable taps.
Clapper did not disclose how many warrantless searches had been performed by the NSA.
That “nobody is listening to your phone calls thing” was just a figure of speech. It really means that nobody is probably listening to your phone calls. Most of the time. And if they are, they have followed some obscure rules in secret so it’s all good.
But there’s another problem. If you’ve been following this story at Emptywheel you’ve known about this backdoor search issue for a long time. And you also know that it isn’t just the NSA that has this power to listen in on phone calls without warrants. The FBI can do it under FISA too. Indeed, the court rulings allowing CIA and NSA backdoor searches were apparently based on earlier FBI authorizations. And Wheeler’s close read of Clapper’s letter leads her to believe there’s a reason why everyone’s so focused on the NSA and CIA on this and go out of their way not to mention the FBI — their use (abuse?) of these backdoor searches is quite possibly much more common.
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