The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls, a participant said.
Rep. Jerrold Nadler, a New York Democrat, disclosed on Thursday that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed “simply based on an analyst deciding that.”
If the NSA wants “to listen to the phone,” an analyst’s decision is sufficient, without any other legal authorization required, Nadler said he learned. “I was rather startled,” said Nadler, an attorney and congressman who serves on the House Judiciary committee.
Not only does this disclosure shed more light on how the NSA’s formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.
James Owens, a spokesman for Nadler, provided a statement on Sunday morning, a day after this article was published, saying: “I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant.” Owens said he couldn’t comment on what assurances from the Obama administration Nadler was referring to, and said Nadler was unavailable for an interview. (CNET had contacted Nadler for comment on Friday.)
Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, being able to listen to phone calls would mean the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.
Nadler’s initial statement appears to confirm some of the allegations made by Edward Snowden, a former NSA infrastructure analyst who leaked classified documents to the Guardian. Snowden said in a video interview that, while not all NSA analysts had this ability, he could from Hawaii “wiretap anyone from you or your accountant to a federal judge to even the president.”
There are serious “constitutional problems” with this approach, said Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who has litigated warrantless wiretapping cases. “It epitomizes the problem of secret laws.”
The NSA declined to comment to CNET. (This is unrelated to the disclosure that the NSA is currently collecting records of the metadata of all domestic Verizon calls, but not the actual contents of the conversations.)
Rep. Mike Rogers (R-Mich.), the head of the House Intelligence committee, told CNN on Sunday that the NSA “is not listening to Americans’ phone calls” or monitoring their e-mails, and any statements to the contrary are “misinformation.” It would be “illegal” for the NSA to do that, Rogers said.
The Washington Post disclosed Saturday that the existence of a top-secret NSA program called NUCLEON, which “intercepts telephone calls and routes the spoken words” to a database. Top intelligence officials in the Obama administration, the Post said, “have resolutely refused to offer an estimate of the number of Americans whose calls or e-mails have thus made their way into content databases such as NUCLEON.”
Earlier reports have indicated that the NSA has the ability to record nearly all domestic and international phone calls — in case an analyst needed to access the recordings in the future. A Wired magazine article last year disclosed that the NSA has established “listening posts” that allow the agency to collect and sift through billions of phone calls through a massive new data center in Utah, “whether they originate within the country or overseas.” That includes not just metadata, but also the contents of the communications.
William Binney, a former NSA technical director who helped to modernize the agency’s worldwide eavesdropping network, told the Daily Caller this week that the NSA records the phone calls of 500,000 to 1 million people who are on its so-called target list, and perhaps even more. “They look through these phone numbers and they target those and that’s what they record,” Binney said.
Read more at CNET.