Director of National Intelligence James Clapper and NSA chief Gen. Keith Alexander made their umpteenth appearance in front of Congress yesterday to do damage control in the aftermath of Edward Snowden’s leaks. As always, they insisted NSA surveillance programs are lawful and subject to oversight by Congress and the courts.
A day after that familiar charade, The Washington Post has published a report on NSA’s secret infiltration of Google and Yahoo data centers around the world.
By tapping those links, the agency has positioned itself to collect at will from among hundreds of millions of user accounts, many of them belonging to Americans. The NSA does not keep everything it collects, but it keeps a lot.
According to a top secret accounting dated Jan. 9, 2013, NSA’s acquisitions directorate sends millions of records every day from Yahoo and Google internal networks to data warehouses at the agency’s Fort Meade headquarters. In the preceding 30 days, the report said, field collectors had processed and sent back 181,280,466 new records — ranging from “metadata,” which would indicate who sent or received e-mails and when, to content such as text, audio and video.
…The infiltration is especially striking because the NSA, under a separate program known as PRISM, has front-door access to Google and Yahoo user accounts through a court-approved process.
That’s a huge story. As has been the case since Snowden’s disclosures…they just keep coming.
But the most important part of the story, in my opinion, is the very last paragraph of the Post‘s report. And I’m afraid it will get diminished attention in the fall out. Here it is:
In 2011, when the Foreign Intelligence Surveillance Court learned that the NSA was using similar methods to collect and analyze data streams — on a much smaller scale — from cables on U.S. territory, Judge John D. Bates ruled that the program was illegal under the Foreign Intelligence Surveillance Act and inconsistent with the requirements of the Fourth Amendment.
Bottom line: the FISA court has already found surveillance of a lesser degree and on a much smaller scale to be illegal and in violation of the Fourth Amendment.
The PRISM program, mentioned above, is horrendous and invasive, but it is authorized under Section 702 of the Foreign Intelligence Surveillance Act and overseen, in however limited and biased a fashion, by the FISA courts. This backdoor infiltration is not authorized under 702 and not overseen by FISA courts. Google and Yahoo aren’t even aware they’ve been infiltrated in this way.
Clapper, Alexander, and whatever other official defenders of unlimited NSA spying can repeat the slogans about this being lawful and subject to checks by other branches all they want. Let them scream about it at the top of their lungs.
It isn’t true.