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Ever since former government contractor Edward Snowden revealed the details of two government spy programs that scoop up phone and Internet communications, a core question for many Americans has been, are they listening to me?
Defenders of National Security Agency operations have worked hard to set that concern to rest. One of the voices leading the charge has been President Barack Obama’s.
"If you are a U.S. person, the NSA cannot listen to your telephone calls and the NSA cannot target your emails," Obama said in an interview on Charlie Rose.
On the other side, Snowden warned that most Americans are in fact being targeted.
"The NSA specifically targets the communications of everyone," Snowden said in an interview with The Guardian in early June. "It ingests them by default. It collects them in its system, and it filters them, and it analyses them, and it measures them, and it stores them for periods of time simply because that's the easiest, most efficient, and most valuable way to achieve these ends. So while they may be intending to target someone associated with a foreign government or someone they suspect of terrorism, they're collecting your communications to do so."
Who’s right, Obama or Snowden? The answer depends on the definition of "targeting."
Snowden used the word target in its broadest sense. When Obama defended the program, he used it more narrowly. The underlying law, the Foreign Intelligence Surveillance Act, demands that government agencies name a target if they want a court order to snoop. As it turns out, FISA uses the word both ways.
What FISA requires
We don’t know exactly the legal arguments the NSA used to get its surveillance orders, but we can see what the FISA law allows in several key sections. Section 1861 permits intelligence agents to gather business records. This would cover the collection of telephone call metadata -- the time and location of call and how long it lasted. This section doesn’t mention targeting at all.
Section 1881 covers the the collection of Internet communications. It allows "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." The law expressly forbids the NSA from reading the email of Americans unless they are involved in terrorism or some other foreign threat. That doesn’t mean the government might not end up with some of those emails in its data files.
The legal experts we reached all agreed that FISA does not specifically define the word "target." They all said its meaning is implied in the law’s language. Nathan Sales, law professor at George Mason University School of Law, told us the government’s intent is key.
"The law defines ‘electronic surveillance’ to mean ‘intentionally targeting’ a person," Sales said. Overall, the law implies that "if the acquisition is inadvertent, it doesn’t count as targeting."
While the law doesn’t define targeting, it does say who can be targeted, and this prompts some debate. Molly Bishop Shadel, law professor at the University of Virginia School of Law, noted that the law allows an expansive interpretation.
"’Target’ in FISA terms is the person, entity or organization who is the foreign power or agent of a foreign power that the government is trying to watch," she said. "Sometimes that target will be a specific person; sometimes it will be al-Qaida or another foreign power, generally."
To critics of the law, this open definition of "target" clears the way for the sort of broad brush collection of communications that Snowden described.
"FISA was written so they didn’t need to target specific individuals," said Trevor Timm, a privacy activist with the Electronic Frontier Foundation.
Timm is equally concerned that the law gives the government wide latitude so that the data collected need only be relevant to an investigation, rather than some tighter connection.
"They broadened the ability of the government to put in these requests, so it need only be to gather foreign intelligence information. That covers a lot of ground," Timm said.
If FISA used targeting only in this sense, the public understanding of the word might be more consistent. But Shadel pointed out, one section of the law sets a higher legal bar if government agents want to drill down into individual conversations, whether in phone calls, emails, or any other exchange.
In section 1805, the law states a judge needs to find that "there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power." A bit further down, the law says that in determining probable cause, the judge "may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target." In Shadel’s view, this ties together a tighter meaning of targeting with a tougher legal justification for reading a person’s individual email.
Some lawmakers believe the law still fails to offer sufficient protections for individual privacy. Sen. Ron Wyden, D-Ore., and Sen. Rand Paul, R-Ky., have each introduced amendments designed to strengthen controls on when the government can dig deeper into its trove of stored communications.
This is where the meaning of the word "targeting" comes into play. In the parts of the law that deal with the wholesale collection of data, targeting can apply to groups and use the more lenient requirement that the information need only be relevant to an investigation. In parts that could be used to read individual emails, there is a somewhat greater emphasis on naming a specific person and a higher legal standard to show probable cause.
When Snowden said the NSA targets the communications of everyone, he was referring to the sections of the law that allow the government the greatest freedom to vacuum up exchanges involving people who are not American citizens and are not in the country. When Obama defended the surveillance, he was referring to the limits that apply when the government is after more specific information. In both cases, the law deals with international intelligence work; the NSA is not allowed to specifically target Americans at all.
Given the nature of communication technology, it is a given that when the government casts a wide net, it will pull in material that many Americans would expect to be private. Snowden talked about the government’s vast trove of data and how it filters, analyzes and measures what’s there. (The latest revelations in the Washington Post provide an NSA diagram to show how that sifting and sorting takes place.)
Steve Vladeck, a law professor at the American University Washington College of Law, said this step in the process is where privacy activists should focus their attention. Once the government has its data trove, the most important questions become what rules govern who might see them and who makes sure that government agencies follow the rules.
"The key is what the government’s allowed to do with evidence it picks up," Vladek said.
PBS, Charlie Rose, June 17, 2013
Policymic, Edward Snowden interview: Full transcript, June 9, 2013
Email interview with Molly Bishop Shadel, Associate Professor of Law, University of Virginia School of Law, July 1, 2013
Legal Information Institute, 50 USC § 1881a - Procedures for targeting certain persons outside the United States other than United States persons
Legal Information Institute, 50 USC § 1804 - Applications for court orders
Legal Information Institute, 50 USC § 1805 - Issuance of order
Legal Information Institute, 50 USC § 1801 - Definitions
National Security Agency, Section 702 Protections, posted on Scribid, June 25, 2013
Senate Select Committee on Intelligence, Report on FISA Amendment Act - Sunset Extensions Act 2012, June 7, 2012
Electronic Frontier Foundation, An international perspective on FISA, June 15, 2013
Email interview with Trevor Timm with the Electronic Frontier Foundation, July 1, 2013
Email interview with Nathan Sales, assistant professor of law, George Mason School of Law, June 21, 2013
Email interview with Stephen Vladeck, professor of law, American University Washington College of Law, June 22
Washington Post, NSA slides explain the PRISM data collection program June 29, 2013
Washington Post, Misinformation of classified NSA program includes statements by senior U.S. officials, June 30, 2012
The Guardian, "NSA Prism program taps in to user data of Apple, Google and others," June 7, 2013
PolitiFact, Rep. Mike Rogers says "it’s expressly prohibited by law" for the government to read domestic email traffic, June 13, 2013
The Guardian, The top secret rules that allow the NSA to use U.S. data without a warrant, June 20, 2013
The Guardian, Procedures used by NSA to minimize data collection from US persons: Exhibit B, June 20, 2013
Christian Science Monitor, When in doubt, NSA searches information on Americans, June 23, 2013