WASHINGTON 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 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, that officials in 2011 got the court to lift the bar and that the search authority has been used.
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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 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. 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 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.
Joel gave hypothetical examples of why the authority was needed, such as when the NSA learns of a rapidly developing terrorist plot and suspects that a U.S. person may be a conspirator. Searching for communications to, from or about that person can help assess that person’s involvement and whether he is in touch with terrorists who are surveillance targets, he said. The searches take place under a surveillance program Congress authorized in 2008 under Section 702 of the Foreign Intelligence Surveillance Act.
The NSA intercepts more than 250 million Internet communications each year under Section 702. Ninety-one percent are from U.S. Internet companies such as Google and Yahoo. The rest come from “upstream” companies that route Internet traffic to, from and within the United States.