FROM THE NEW YORKER MAGAZINE
HOW MANY AMERICANS DOES THE NSA SPY ON--A LOT OF THEM
BY AMY DAVIDSON
Update, Friday 7 P.M. E.T.: The United States government has charged Edward Snowden, the source of the leaked N.S.A. documents, with espionage and theft of government property. The charges were in a sealed complaint filed in Virginia, the Washington Post reported. The Post also said that the U.S. has asked Hong Kong to detain Snowden.
If you are writing an e-mail, and hope to make it clear to any National Security Agency analysts who might be reading it that you are an American, it won’t help to mention that you were just at a Shake Shack or recently bought a Rawlings baseball glove, or to cite anything that you learned in a middle-school history class. According to documents published by the Guardian and the Washington Post, the N.S.A.’s “minimization procedures”—which are supposed to keep it from spying on Americans—include the note, “A reference to a product by brand name, or manufacturer’s name or the use of a name in a descriptive sense, e.g. ‘Monroe Doctrine,’ is not an identification of a United States person.”
But what is? Maybe American name brands aren’t enough—there is a Shake Shack in Dubai, as it happens—but reading the new documents, which include a secret FISA court order that amounts to a gift certificate for one year of warrant-free spying, it becomes clear that many more “United States persons” have their communications monitored, and on much vaguer grounds, than the Obama Administration has acknowledged. “What I can say unequivocally is that, if you are a U.S. person, the N.S.A. cannot listen to your telephone calls, and the N.S.A. cannot target your e-mails,” the President said earlier this week. A 2009 memorandum signed by Eric Holder establishes a broader criteria, referring to people “reasonably believed” to be located abroad. That reasonable belief, as it turns out, can be quite shaky.
Among the information that the N.S.A. is told to use includes having had a phone or e-mail connection with a person “associated with a foreign power or foreign territory,” or being in the “‘buddy list’ or address book” of such a person. It won’t be lost on anyone that Americans whose families include recent immigrants will be disproportionately vulnerable to such intrusions. (So, incidentally, will journalists.) The defaults in the analysis are telling: a person
whose location is unknown, will not be treated as a United States person unless such person can be positively identified as such, or the nature or circumstances of the person’s give rise to a reasonable belief that such person is a United States person.
(The extent to which the N.S.A. can spy on a wide range of foreigners is its own, important discussion.)
The criteria also show the interaction of various N.S.A. programs: the Administration has defended the collection of telephony metadata by saying that if it ever produces an interesting match, investigators would have to go to court to get a proper warrant to look more closely. But metadata is mentioned in these documents as a basis for picking a target for the surveillance under what appears to be a blanket FISA order—not an individualized one.
And what happens when the N.S.A. realizes that it is reading and listening to an American’s communications? It is supposed to stop, at least until it gets a different kind ofFISA order—which, based on what it has already heard, may be all the easier. And if it finds something that is interesting in any one of a half-dozen ways, it can analyze the communications further, and hold on to them for five years. Maybe an American’s e-mails contain “significant foreign intelligence information”; or maybe they don’t, but are “reasonably believed” to contain evidence of a crime. There are a lot of crimes on the books, and the N.S.A. is also allowed to count one it thinks might be “about to be committed.” It can also “disseminate” the information to other agencies, and find out more about the American if it seems that the person might have access to secrets, or be a target of foreigners, or just do business with them. This includes communications between someone under indictment and his or her lawyer—the words can’t be used in a prosecution, but can be to gather intelligence. And what the N.S.A. happens to see can also be used in leak investigations.
Does this still seem too narrow, not enough to keep us all safe? The documents note that the private data of Americans that the N.S.A. can hold on to “include electronic communications acquired because of limitations on NSA’S ability to filter communications.” In other words, if it fails to fine-tune its targeting, it can keep what it sweeps up anyway. Also, if the N.S.A. decides on its own that there is an “immediate threat,” it can temporarily put all these minimization procedures aside and figure it out later.
These documents were classified: they shouldn’t have been. The N.S.A. can look for certain secrets and keep them. But Americans shouldn’t have to listen to the President with an ear for what words like “targeted” really mean. (Even by that standard, the Administration has not been forthright.) We get to know what the rules are—so we, and not just a secret court, can tell when they are being broken.
Photograph by Nico De Pasquale/Getty.
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