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E-Mail Surveillance Renews Concerns in Congress
WASHINGTON - The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said.
Kenneth L. Wainstein testified about surveillance in Fall 2007 at a Senate committee hearing. (Alex Wong/Getty Images) The agency's monitoring of domestic e-mail messages, in particular, has posed longstanding legal and logistical difficulties, the officials said.
Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency's ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans' e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.
Both the former analyst's account and the rising concern among some members of Congress about the N.S.A.'s recent operation are raising fresh questions about the spy agency.
Representative Rush Holt, Democrat of New Jersey and chairman of the House Select Intelligence Oversight Panel, has been investigating the incidents and said he had become increasingly troubled by the agency's handling of domestic communications.
In an interview, Mr. Holt disputed assertions by Justice Department and national security officials that the overcollection was inadvertent.
"Some actions are so flagrant that they can't be accidental," Mr. Holt said.
Other Congressional officials raised similar concerns but would not agree to be quoted for the record.
Mr. Holt added that few lawmakers could challenge the agency's statements because so few understood the technical complexities of its surveillance operations. "The people making the policy," he said, "don't understand the technicalities."
The inquiries and analyst's account underscore how e-mail messages, more so than telephone calls, have proved to be a particularly vexing problem for the agency because of technological difficulties in distinguishing between e-mail messages by foreigners and by Americans. A new law enacted by Congress last year gave the N.S.A. greater legal leeway to collect the private communications of Americans so long as it was done only as the incidental byproduct of investigating individuals "reasonably believed" to be overseas.
But after closed-door hearings by three Congressional panels, some lawmakers are asking what the tolerable limits are for such incidental collection and whether the privacy of Americans is being adequately protected.
"For the Hill, the issue is a sense of scale, about how much domestic e-mail collection is acceptable," a former intelligence official said, speaking on condition of anonymity because N.S.A. operations are classified. "It's a question of how many mistakes they can allow."
While the extent of Congressional concerns about the N.S.A. has not been shared publicly, such concerns are among national security issues that the Obama administration has inherited from the Bush administration, including the use of brutal interrogation tactics, the fate of the prison at Guantánamo Bay, Cuba, and whether to block the release of photographs and documents that show abuse of detainees.
In each case, the administration has had to navigate the politics of continuing an aggressive intelligence operation while placating supporters who want an end to what they see as flagrant abuses of the Bush era.
The N.S.A. declined to comment for this article. Wendy Morigi, a spokeswoman for Dennis C. Blair, the national intelligence director, said that because of the complex nature of surveillance and the need to adhere to the rules of the Foreign Intelligence Surveillance Court, the secret panel that oversees surveillance operation, and "other relevant laws and procedures, technical or inadvertent errors can occur."
"When such errors are identified," Ms. Morigi said, "they are reported to the appropriate officials, and corrective measures are taken."
In April, the Obama administration said it had taken comprehensive steps to bring the security agency into compliance with the law after a periodic review turned up problems with "overcollection" of domestic communications. The Justice Department also said it had installed new safeguards.
Under the surveillance program, before the N.S.A. can target and monitor the e-mail messages or telephone calls of Americans suspected of having links to international terrorism, it must get permission from the Foreign Intelligence Surveillance Court. Supporters of the agency say that in using computers to sweep up millions of electronic messages, it is unavoidable that some innocent discussions of Americans will be examined. Intelligence operators are supposed to filter those out, but critics say the agency is not rigorous enough in doing so.
The N.S.A. is believed to have gone beyond legal boundaries designed to protect Americans in about 8 to 10 separate court orders issued by the Foreign Intelligence Surveillance Court, according to three intelligence officials who spoke anonymously because disclosing such information is illegal. Because each court order could single out hundreds or even thousands of phone numbers or e-mail addresses, the number of individual communications that were improperly collected could number in the millions, officials said. (It is not clear what portion of total court orders or communications that would represent.)
"Say you get an order to monitor a block of 1,000 e-mail addresses at a big corporation, and instead of just monitoring those, the N.S.A. also monitors another block of 1,000 e-mail addresses at that corporation," one senior intelligence official said. "That is the kind of problem they had."
Overcollection on that scale could lead to a significant number of privacy invasions of American citizens, officials acknowledge, setting off the concerns among lawmakers and on the secret FISA court.
"The court was not happy" when it learned of the overcollection, said an administration official involved in the matter.
Defenders of the agency say it faces daunting obstacles in trying to avoid the improper gathering or reading of Americans' e-mail as part of counterterrorism efforts aimed at foreigners.
Several former intelligence officials said that e-mail traffic from all over the world often flows through Internet service providers based in the United States. And when the N.S.A. monitors a foreign e-mail address, it has no idea when the person using that address will send messages to someone inside the United States, the officials said.
The difficulty of distinguishing between e-mail messages involving foreigners from those involving Americans was "one of the main things that drove" the Bush administration to push for a more flexible law in 2008, said Kenneth L. Wainstein, the homeland security adviser under President George W. Bush. That measure, which also resolved the long controversy over N.S.A.'s program of wiretapping without warrants by offering immunity to telecommunications companies, tacitly acknowledged that some amount of Americans' e-mail would inevitably be captured by the N.S.A.
But even before that, the agency appears to have tolerated significant collection and examination of domestic e-mail messages without warrants, according to the former analyst, who spoke only on condition of anonymity.
He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits - no more than 30 percent of any database search, he recalled being told - and Americans were not explicitly singled out in the searches.
The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.
Other intelligence officials confirmed the existence of the Pinwale e-mail database, but declined to provide further details.
The recent concerns about N.S.A.'s domestic e-mail collection follow years of unresolved legal and operational concerns within the government over the issue. Current and former officials now say that the tracing of vast amounts of American e-mail traffic was at the heart of a crisis in 2004 at the hospital bedside of John Ashcroft, then the attorney general, as top Justice Department aides staged a near revolt over what they viewed as possibly illegal aspects of the N.S.A.'s surveillance operations.
James Comey, then the deputy attorney general, and his aides were concerned about the collection of "meta-data" of American e-mail messages, which show broad patterns of e-mail traffic by identifying who is e-mailing whom, current and former officials say. Lawyers at the Justice Department believed that the tracing of e-mail messages appeared to violate federal law.
"The controversy was mostly about that issue," said a former administration official involved in the dispute.
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21 Comments so far
Show AllSince any real terrorist knows that all email is monitored, anything that is found is what they want the spies to know... disinformation.
When they are able to block real spam and I am able to get emails from friends who are not spammers but someone up there won't let me change that, then I will think that maybe they know what they are doing but from this article and my experience the ones who make the law don't know shit.
When the President of the United States encourages you to join "Facebook", a "Data Mining Resource" for the CIA.....Yes Peter Thiel, the venture capitalist and neo-conservative, had himself put on the Board of Directors, then he got James Breyer to join him on the Board.....James Breyer is linked to people at In-Q-Tel, a CIA indpendent investment firm that searches for companies that can do "Data-Mining".......
So, why does the United States have customs agents at the airports in Dublin and Shannon, Ireland? Why are there signs welcoming you to the United States in Dublin and Shannon? Why is every non-Ameican finger printed (10 fingers) and digitally photographed?
No, Congress is a worthless body when it comes to protecting and preserving the Constitution of the United States.......Get ready for the next "Shock and Awe Event" and see how many people get thrown in detention centers without "just cause".
First there should be an amendment to the Constitution that outlaws unwarranted spying no matter what the reason. Punishment? How bout 10 years right on up to lifetime in jail?
Second, all of these laws protecting government lawbreaking should be rescinded and repealed. And it should be illegal for the government to write laws that forgive it of breaking the laws, such as the "new improved" FISA bill that Obama backed that granted the telecomms immunity.
While the Democraps decided they could offer immunity to telecomms with a promise that the new law would outlaw such behavior in the future, we now see that the NSA is breaking the new law. This was to be expected and the Democraps knew it. One would expect more than shamefaced lying from the Democrap party. How is it that a second law forgiving lawbreaking will prevent lawbreaking in the future? It makes no sense and these kind of laws should be illegal.
Everyone involved in the illegal wiretapping at the NSA, CIA, or the military should be fired.
"...there should be an amendment..." Guess what? There is! Here is the 4th Amendment to the US Consitution:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Prying into someone's e-mail without probable cause is a violation of our constitutional rights! Sounds a lot like an "unreasonable search" of my "effects" to me.
Even as the US Government is censoring more and more of its own criminal activity (prisoner abuse, civilian victims in Afghanistan), they are unconstitutionally prying into our private lives.
At least we know that the comments that we put here remain safe and unread. Those right wing sleezeballs couldn't stomach reading these messages and besides, they spend all of their free time reading Red State.
Excuse me, I have to answer that knock on my door...
Those 'right wing sleezeballs' like Obama. He fully supported the last FISA bill that gave immunity to the telecoms and broadened the illegal wire tapping. He O-blah-blahed about it but when the rubber hit the road he voted for it, lovingly in fact.
'Meet the new boss. Same as the old boss.' - Pete Townsend
There is nothing "liberal" or "progressive" about Obama. Judged by his actions, not his flowery speeches, he is as much a neoconservative as William Kristol or GW Bush. Basically he takes orders from his superiors. President of the United States has become a middle management job at best.
Agreed. Obama is a Democrat through and through. Bought, paid for and delivered by the same corporate interests that bring you the Republicans.
'Don't get fooled again' - Pete Townsend
Rome was not built in a day, and Bush/Cheney had 7 years to build the largest spy network in the world run by loyal right wing religeous domestic terroists.
It will take a few years to fix this mess , along with the mess created by 30 of the last 40 years of republican presidents.
Keep electing Democrats. Right now, its the only way to force out the Bush cronies.
Gee, I thought the 4th amendment required law enforcement to go before a judge and prove probable cause to get a warrant to tap your phone/e-mail???
I must be mistaken.
You are partially mistaken, the PatriotAct over rides all rights set forth in the Constitution. We are now a ploice state.
“Eat a peach for peace” – Duane Allman
They only check email related to potential terrorism. But then if a friend of a friend has a sister whose husband once contributed to a charity that might support terrorism, then they have the right to check your email.
So I think the only mail they don't check belongs to those who are not on the net.
ekaton very true he pledges allegiance to the united corporations of amerika one corporation
for slavery and obedience of all!
I agree fully with logarithhmic's post. Fourth Amendment, anyone? Congress? Anyone?
What is the function of the National Security Agency?
Is it to make the citizens distrust their government?
"The agency's monitoring of domestic e-mail messages, in particular, has posed longstanding legal and logistical difficulties"
Yes, funny how breaking the law poses "legal and logistical difficulties". When a petty criminal such as peeping Tom is caught "monitoring", the law is not retroactively changed to make the offense legal in order to protect the perpetrator. But if you work for the government and you peep on millions of people, then we're supposed to be more concerned with the "logistics" of it.
Are they still teaching 1984 in high school? Or has it been replaced with the "Audacity of Hope"? Either way, at least they'll learn about "doublespeak".
Let's add in the First Amendment:
----------
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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Many of us petition the government, through e-mail, for redress of grievances.
Then the Fourth:
----------
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
----------
Under the misnamed Patriot Act and its many descendants, the government is allowed to enter your home in your absence, go through all your papers, your computers, etc., then leave secretly so you never even know you've been burglarized by your government. It would not surprise me to find that they secrete something they can later "find" and arrest you for later on, if you really get to be a pain in the neck.
Now, at the border, all your papers, cell phones, computers, disks, notes, Ipods, etc., may be confiscated at the border and searched. This with no reason, just at governmental whim. The government has no obligation to return them to you.
We are being conditioned to accept a total loss of any personal privacy to the government. There are now chips in many manufactured goods that will respond to radio signals. Cars and Cell Phones have a gps chip in them. Most of them can be triggered by the proper signal to let the government know exactly where you are to within a foot or so. We've already seen what predator drones can do with that sort of information.
A gentleman is patenting a chip to be inserted into the human body with a locator in it.
The Human Tracking Microchip
http://www.globalresearch.ca/index.php?context=va&aid=13900
Version two is interesting. "After subcutaneous implantation, the chip would send out encrypted radio waves that would be tracked by satellites to confirm the person’s identity and whereabouts. An alternate model chip could reportedly release a poison into the carrier if he or she became a security risk."
"This is my Country, this is my home..." Pffffttt!!!
The joke's on us. Nothing has been done after all of these years, except that Congress voted to absolve the Bushies of their crimes ex post facto. Who could forget Obama signing that FISA Bill, breaking his promise, abetting the crime, even before getting elected President.
And yes, people voted for Obama anyway.
It's hard to feel outrage when you know you aren't represented, laws are made up on the spot and your fellow U.S. citizen is too clueless to care.
Still, this article is rich with irony. At one point, it describes an NSA spokesperson talking about "the need to adhere to the rules of the Foreign Intelligence Surveillance Court." What a riot.
-TIA
The very same contracters that receive billions of dollars for warrant less surveillance are busy collecting dirt on all elected officials,judges,lawyers and anyone that might shutdown the money train,
If congress doesnt act soon, shutdown the patriot act and force the procurment of warrants through the courts that include detailed probable cause, like the constitution demands, corporations will have total control of all three branches of our government.
Let me help out the greedy politicians , they wont have to pay as much with lobby money because they will blackmail you for votes.
If you cant see this coming, you are all damm fools.
And lets not forget, they are collecting dirt on all law enforcement agencies too, hey , they play for keeps.
Their not going to let the law get in their way.
I can see clearly now the importance of the fourth amendment, it protects all Americans and our constitution from a treasonus take over .
Warrant less surviellance is a cancer, and will kill our Democracy and Republic if we dont act now.
"If congress doesnt act soon, shutdown the patriot act and force the procurment of warrants through the courts that include detailed probable cause, like the constitution demands, corporations will have total control of all three branches of our government."
Sorry, you are several years too late. They already own the three branches of the government, lock, stock and barrel. Hence, it doesn't make much difference to them which party "wins" as they own them both. The only difference is a shift in emphasis, which is heralded as "change" to keep us pacified.
And, yes, I'm sure that all the records on US citizens that the FBI compiled are still in existence and ready to use against any of those who are still living. Since then, the gathering has been wholesale and now it is near total.
As I said on another post, if the Gestapo and the SS had had in the 1930's and '40's the technical means and expertise that our modern day counterparts have, we would all be speaking German and heiling the swastika as a pledge of allegiance.
Evil does not seem to change, it just grows and refines itself.