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June 21, 2013

NSA Can Use Unintentionally Gathered Data From U.S. Citizens, Court Says

The U.S.’s top-secret court has given the National Security Agency (NSA) the green light to use data that was “inadvertently” gathered from domestic communications without a warrant, new documents published by The Guardian reveal.

While in most cases the Foreign Intelligence Surveillance Court (FISC) says data collected on Americans under the foreign intelligence authority must be destroyed, there are exceptions to the rule. A lot of them.

The Foreign Intelligence Surveillance Court allows the NSA to:

• Retain unintentionally gathered information on Americans for up to five years;

• Save and use “inadvertently acquired” American communications if the NSA finds: usable intelligence, information on illegal activity, the threat of harm to people or property, encrypted messages, data pertinent to cyber-security;

• Save “foreign intelligence information” from attorney-client communications;

• Access the content from “U.S.-based machine(s)” or phone numbers to determine if targets are located in the U.S., in the hopes of avoiding further surveillance.

The documents also revealed NSA analysts have been handed the right to decide who will be targeted for surveillance, without interference from the court.

A 2009 document, which is signed by U.S. Attorney General Eric Holder, indicates that not only has such surveillance been in effect for four years, but it was authorized under U.S. President Barack Obama’s watch.

Obama, during a 45-minute interview aired on PBS Monday night, said the NSA cannot listen in on American’s calls or read their e-mails without securing a warrant.

“If you’re a U.S. person, then NSA is not listening to your phone calls and it’s not targeting your e-mails unless it’s getting an individualized court order. That’s the existing rule,” the president said.

The new document published by The Guardian appears to fly in the face of the president’s assertions, however.

In an attempt to bring an end to the secrecy and doubletalk, two U.S. Congressmen —Rep. Adam Schiff (D-CA) and Rep. Todd Rokita (R-IN) —have introduced a piece of legislation to Congress in a bid to curb the NSA’s collection of American’s phone records and online communications.

The bill, if successful, will require the attorney general to declassify significant FISC opinions.

“In order to have an informed public debate on the merits of these programs, it is important for the American people to know how such programs have been authorized, their limits and their scope,” Schiff said in a statement on his website.  “Particularly now that the existence of these programs has been acknowledged, I believe there is much more that can be shared with the public about their legal basis.

“It is my hope that this legislation will increase transparency and inform the national debate about the surveillance authorities provided to the Intelligence Community. I also believe that requiring additional disclosure would provide another valuable check on any potential expansion of surveillance under these authorities, whether by this or any future Administration.”

The legislation enables the attorney general to prevent declassification of a court ruling, but only if national security interests are at stake.

“Our bill will help Congress and the American people exercise proper oversight, while still enabling us to do everything possible within the bounds of the Constitution to protect ourselves from those who would harm us,” Rokita said.

The bill complements legislation introduced to the Senate by a bi-partisan group of eight senators last week.