Court Decision Allows NSA to Search its Database for American Records Without a Warrant

| Sun Sep. 8, 2013 12:16 PM EDT

Ellen Nakashima has an oddly downplayed story in the Washington Post today. As we all know, the NSA collects massive amounts of both domestic and foreign communications, which it stores for years. It's allowed to search this database, but under the Bush administration they could only search for names and email addresses of foreign targets. Two years ago, however, the Obama administration got permission to perform searches using the names and email addresses of American residents:

The court decision allowed the NSA “to query the vast majority” of its e-mail and phone call databases using the e-mail addresses and phone numbers of Americans and legal residents without a warrant, according to Bates’s opinion. The queries must be “reasonably likely to yield foreign intelligence information.” And the results are subject to the NSA’s privacy rules.

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

Senators Ron Wyden and Mark Udall have issued warnings about this, but secrecy rules kept their warnings vague. Now, however, it's public knowledge:

“The [surveillance] Court documents declassified recently show that in late 2011 the court authorized the NSA to conduct warrantless searches of individual Americans’ communications using an authority intended to target only foreigners,” Wyden said in a statement to The Washington Post. “Our intelligence agencies need the authority to target the communications of foreigners, but for government agencies to deliberately read the e-mails or listen to the phone calls of individual Americans, the Constitution requires a warrant.”

Senior administration officials disagree. “If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

So there you have it. When the NSA sweeps up this data in the first place, it says no individualized warrant is necessary because it's merely storing the information, not "collecting" it. Collection only happens when an analyst performs a search and looks at the stored content. But now they're saying that even when analysts explicitly search for U.S. names and get some hits, this means they just "happen to" have collected the communications of Americans. And once that's happened, why should they have to go back and get a warrant for records they just "happen to" have collected? As long as they think it's "reasonably likely" to yield foreign intelligence information, they should be able to go right ahead. And now they can. Lovely.

UPDATE: One reason this might not have gotten a lot of play from the Post is that much of it has been previously reported. There's some new stuff in the Post account, but the basics were reported last month by James Ball and Spencer Ackerman in the Guardian. Click here for the story.