Please stop us before we spy without warrant again (well, until we need to)

Please stop us before we spy without warrant again (well, until we need to)

by digby

Wait, what?
The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material.

In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinion by U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court.

What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, and that officials in 2011 got the court to lift the bar and that the search authority has been used
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. 

So, in 2008 the government requested that the FISA Court impose an explicit ban on searching through its database without a warrant and then got them to reverse it three years later?  I thought they had reassured us that they weren't searching through all the stored data they have on Americans without warrants.

And why would the government ask the court to ban them from doing anything? Have they no agency to simply not do things? In fact, if it has to be explicitly banned from doing things it shouldn't do we are in much deeper trouble than we think.

The question, once again, comes down to what the meaning of the word "target" is:
Together the permission to search and to keep data longer expanded the NSA’s authority in significant ways without public debate or any specific authority from Congress. The administration’s assurances rely on legalistic definitions of the term “target” that can be at odds with ordinary English usage. The enlarged authority is part of a fundamental shift in the government’s approach to surveillance: collecting first, and protecting Americans’ privacy later.

“The government says, ‘We’re not targeting U.S. persons,’ ” said Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology. “But then they never say, ‘We turn around and deliberately search for Americans’ records in what we took from the wire.’ That, to me, is not so different from targeting Americans at the outset.”

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.
So they can gather information on all of us and keep it in a data base without a warrant. And everyone says that's cool because they aren't looking at anything specific so it doesn't need one. However, when they do want to look at something specific they don't need a warrant because the information they gathered for this data base wasn't targeted. Joseph Heller would be laughing his ass off.

Oh, but you don't need to worry. Even though the government asked the FISA court to stop them before they surveilled without warrant again --- and then asked it to reverse it three years later --- all of this is subject to the NSA's "privacy" guidelines.

Update: Turns out Emptywheel was on this two months ago. And she has some very interesting analysis.

As she always does.  She's doing a fundraiser.  Please donate if you can.  Her work is invaluable.