The New York Times reported that the National Security Agency has been searching through the e-mail messages of the American people on a massive scale, even in some instances where the messages are not to or from foreigners residing abroad. “The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas,” the August 8 story reported. “It is also casting a far wider net for people who cite information linked to those foreigners.”
Senior Obama administration officials — such as Director of National Intelligence James Clapper — had falsely denied the NSA even collected data on phone calls and Internet traffic on millions of Americans until whistleblower and former NSA contractor Edward Snowden revealed them to the press.
But the New York Times story revealed that the NSA is not merely collecting the information of Americans, it is also actively sifting through Americans' private Internet and e-mail messages. “The National Security Agency is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance, according to intelligence officials.”
The Times' story flatly contradicts the public reassurances of President Obama just two days ago. “There is no spying on Americans,” Obama told NBC's Tonight Show host Jay Leno just two days before the Times story. “We don't have a domestic spying program.”
NSA surveillance information has also been shared with other U.S. agencies, such as the Drug Enforcement Agency, for domestic criminal prosecution, and has been for more than a decade.
According to the Times, the collection and use of Americans' data is a result of a perceived loophole in the 2008 Foreign Intelligence Surveillance Act (FISA) law. The NSA's interpretation of FISA law, revealed in the London Guardian via Edward Snowden, allow the NSA to sift through Americans' private data without a warrant, even if they are not to or from a suspect of an investigation. According to one paragraph in a memo Snowden revealed, the NSA “seeks to acquire communications about the target that are not to or from the target.” In other words, the NSA can snoop into the private e-mails of Americans if the e-mails contain a mention about the target of an NSA investigation, even if the American is innocent or not a suspect. Consider how many Americans have sent messages mentioning “Osama bin Ladin” or “al-Qaeda” in chats or e-mails over the past decade, and one can get an impression of how large this loophole in the prohibition against domestic surveillance is.
For its part, the NSA continues to defend its intelligence surveillance of Americans. “In carrying out its signals intelligence mission, N.S.A. collects only what it is explicitly authorized to collect,” NSA spokeswoman Judith A. Emmel told the Times. “Moreover, the agency’s activities are deployed only in response to requirements for information to protect the country and its interests.”
Of course, the Fourth Amendment to the U.S. Constitution requires a warrant from a court — along with probable cause and a description of what is being searched and what will be found — in order for the search to qualify as constitutional.