Electronic Frontier Foundation: An important New York Times investigation from today [Thursday] reporting that the NSA “is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country,” coupled with leaked documents published by the Guardian, seriously calls into question the accuracy of crucial statements made by government officials about NSA surveillance.

The government has previously tried to reassure the public about its use of FISA Amendments Act Section 702 surveillance practices, emphasizing that, under Section 702, the government may not “intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.” Indeed, the chair of the Senate Intelligence Committee Senator Feinstein, in a letter to constituents who wrote to her expressing concern about the NSA’s spying program, said this: “[T]he government cannot listen to an American’s telephone calls or read their emails without a court warrant issued upon a showing of probable cause.”

We’ve written before about the word games the government plays in describing its surveillance practices: “acquire,” “collect,” and “content” are all old government favorites. The New York Times report proves Feinstein statement is false, and it’s clear it’s time to add “target” to the list of word games as well.

First, at least this much is clear: a “target” under the FAA must be (a) a non-US person and (b) not physically located within the United States. A “person,” for purposes of the FAA, includes individuals as well as “any group, entity, association, corporation, or foreign power.” Under the FAA, the government can thus “target” a single individual (e.g., Vladimir Putin), a small group of people (e.g., Pussy Riot), or a formal corporation or entity (e.g., Gazprom).

So, when the NSA decides to “target” someone (or something), it turns its specific surveillance vacuum at them. The NSA then believes it can intercept and analyze all electronic communications of the target (telephone conversations, email conversations, chat, web browsing, etc) so long as the “target” is overseas and remains overseas. As others have noted, this includes conversations the “target” has with Americans, which would then be “incidentally” collected. Keep in mind this does not require a warrant or even the approval of a court, which is only one way Senator Feinstein’s reassurance was demonstrably false. But there’s still more. [Continue reading…]