"There is no spying on Americans," said President Obama to talkshow host Jay Leno on Tuesday night.
Though he acknowledged the US possesses "mechanisms where we can track a phone number or an email address that we know is connected to some sort of terrorist threat," Obama used a calm voice to say clearly: "We don't have a domestic spying program."
However, according to new reporting by the Guardian based on documents released by NSA whistleblower Edward Snowden, the intelligence agency is, in fact, spying directly on Americans and maintains authority to exploit a "secret backdoor" legal loophole which allows it to search for "US citizens' email and phone calls without a warrant."
Calling the documents "the first evidence that the NSA has permission to search" databases that contain those specific US individuals' communications, the Guardian reports:
The previously undisclosed rule change allows NSA operatives to hunt for individual Americans' communications using their name or other identifying information. Senator Ron Wyden told the Guardian the NSA's authorities provide loopholes that allow "warrantless searches for the phone calls or emails of law-abiding Americans".
The authority, approved in 2011, appears to contrast with repeated assurances from Barack Obama and senior intelligence officials to both Congress and the American public that the privacy of US citizens is protected from the NSA's dragnet surveillance programs.
The intelligence data is being gathered under Section 702 of the of the Fisa Amendments Act (FAA), which gives the NSA authority to target without warrant the communications of foreign targets, who must be non-US citizens and outside the US at the point of collection.
The communications of Americans in direct contact with foreign targets can also be collected without a warrant, and the intelligence agencies acknowledge that purely domestic communications can also be inadvertently swept into its databases. That process is known as "incidental collection" in surveillance parlance.
In reference to Obama's comments made on Leno this week, Trevor Timm of the Electronic Frontier Foundation called the president's assurances "unbelievable" and said they reeked of "Orwellian newspeak."
Trimm's comments were also related to separate reporting in the New York Times on Wednesday, which in part noted that an "overlooked" paragraph included in earlier NSA documents funneled to the Guardian by Snowden mentions that the NSA “seeks to acquire communications about the target that are not to or from the target.” The language indicates, according to intelligence officials interviewed by the Times, that the agency, indeed, is "searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance."
The latest Guardian reporting may be related, but its focus on the section 702 portion of the FAA is also based on the deep concerns voiced by Senator Ron Wyden (D-OR) who has told the newspaper it amounts to "backdoor search" through Americans' communications data:
"Section 702 was intended to give the government new authorities to collect the communications of individuals believed to be foreigners outside the US, but the intelligence community has been unable to tell Congress how many Americans have had their communications swept up in that collection," he said.
"Once Americans' communications are collected, a gap in the law that I call the 'back-door searches loophole' allows the government to potentially go through these communications and conduct warrantless searches for the phone calls or emails of law-abiding Americans."
Wyden, along with his intelligence committee colleague Mark Udall, have attempted repeatedly to warn publicly about the ability of the intelligence community to look at the communications of US citizens, but are limited by their obligation not to reveal highly classified information.
But in a letter they recently wrote to the NSA director, General Keith Alexander, the two senators warned that a fact sheet released by the NSA in the wake of the initial Prism revelations to reassure the American public about domestic surveillance was misleading.
And, so far as "misleading" goes, critics charge that language from government officials—whether intelligence chiefs like Alexander, Director of National Intelligence James Clapper, or President Obama himself—has itself become a critical part of the debate over the NSA spying because they have repeatedly used vague language—though many don't hesitate to call them "lies"—regarding these highly classified programs.
As EFF's Trimm argues, "It is unfortunate that we have to parse through government statements a dozen times before we actually figure out what they are meaning to say. With all these questions that they get they are obfuscating and deflecting and deceiving the American public."
And a New York Times editorial on Friday called out the NSA for its "inexhaustible appetite for delving into the communications of Americans" and slammed the government's handling of the surveillance scandal by opining:
Obama administration officials justified this unwarranted expansion of surveillance powers with the usual hairsplitting arguments over semantics. It’s not “bulk collection” of messages if the messages aren’t stored, they said (even if every message is analyzed by supercomputers as it is sent). It’s legitimate to search through conversations “about” a target, even if the target isn’t part of the conversation. Naturally, the Foreign Intelligence Surveillance Court approved these half-baked assertions with a secret opinion.
The disclosure of [domestic spying programs] makes it more urgent than ever that Congress clamp down on what is unquestionably the bulk collection of American communications and restrict it to clear targets of an investigation. Despite President Obama’s claim this week that “there is no spying on Americans,” the evidence shows that such spying is greater than the public ever knew.