Loophole Shows That, Yes, NSA Has 'Authority' To Spy On Americans -- Directly In Contrast With Public Statements

from the and,-another-one dept

Fri, Aug 9th 2013 9:53am — Mike Masnick

Right, so remember that claim yesterday from Barack Obama about how there is no domestic surveillance program? And remember in our post we noted that such a statement might come back to bite him, seeing that Snowden had leaked somewhere between 15,000 to 20,000 more documents to Glenn Greenwald and somewhere in there, it seemed like there was a decent chance there was evidence that Obama was lying? Right, so, funny story... this morning, James Ball and Spencer Ackerman over at the Guardian have published the details of a neat little loophole that does, in fact, give the NSA "authority" to run searches on Americans without any kind of warrant. This is due to a "rule change" in 2011.

The focus here is on Section 702 under the FISA Amendments Act, which is the authority that the PRISM program is under. Ever since the initial leaks, the defenders of the NSA have repeatedly stated that 702 only applies to non-US citizens who are outside the US. But as the "update" above notes, there was a change to the rules in late 2011 which allows for queries on US persons. As Senator Wyden told the Guardian, this "loophole" now directly allows "warrantless searches for the phone calls or emails of law-abiding Americans."

This also seems reminiscent of our point on Wednesday, in which we noted that every time the NSA is asked about its ability to spy on everyone, it answers about its authority. And, here's evidence that it has clearly been given the "authority" to spy on Americans, contrary to the very clear language of the law.

Also, the timing of this seems interesting. Earlier, we'd noted that the NSA's massive data collection program, Stellar Wind, had been shut down in 2011. And... right about that time suddenly a new law is put in place allowing 702 searches to happen on US persons? I'm sure that's just a complete coincidence...

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Filed Under: 702, backdoor searches, domestic surveillance, faa, fisa amendments act, loophole, nsa, nsa surveillance, ron wyden, surveillance, us persons

29 Comments

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Anonymous Coward, 9 Aug 2013 @ 9:57am

Wow. Just wow.

Let me guess about the ramifications regarding all the lies we've been fed since the leaks...no consequences for anyone right?
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Mark Harrill (profile), 9 Aug 2013 @ 9:59am

Indictments...
So exactly how does one convince their Congress-critter to file charges for lying to Congress?
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Ninja (profile), 9 Aug 2013 @ 10:05am

Re: Indictments...
It's the old question, who rules the rulers, who judges the judges etc.. The 3-Powers setup (Judiciary, Legislative and Executive) was supposed to prevent one of them from going rogue. Yeah...
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RyanNerd (profile), 9 Aug 2013 @ 10:06am

Apparently Obama can use a Vulcan Mind Trick
And thus we see the shredding of the Constitution.
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Anonymous Coward, 9 Aug 2013 @ 10:09am

Re:
Without resorting to the "revenge porn of the nutjobs" kind of consequences, no.

Which would be both the only wrong response, and perhaps the only available response.

Think on that. A revolution is rapidly becoming a necessity in one of the most "stable" 'democracies' in the world.
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Anonymous Coward, 9 Aug 2013 @ 10:11am

Re: Re:
Without resorting to the "revenge porn of the nutjobs" kind of consequences, no.

At this point, I'd settle for at least someone bringing charges against them. We all know how punishment works for the "haves" (there is none). But at least making them go through the process would be a welcome change.
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Anonymous Coward, 9 Aug 2013 @ 10:22am

It does say they can't run USP queries?
am i reading it wrong? it says they can run USP queries but that they cant until the right oversight has been sorted out. Or am i reading it worng. I mean obviously i dont suppose the right oversight has been sorted out and dont know enough about your constitution to know whether saying 'you can, but not yet' is the bad thing.
Personally i think this whole NSA/GCHQ thing is awful and i will continue to vote Green as much as i can but...
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Anonymous Coward, 9 Aug 2013 @ 10:26am

Re:
Nah, there's going to be consequences alright. To the Guardian and Snowden for leaking that info.
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Anonymous Coward, 9 Aug 2013 @ 10:34am

Re: It does say they can't run USP queries?
You're making the mistake of assuming that the oversight is actually present.

Hint: it's not.
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Anonymous Coward, 9 Aug 2013 @ 10:38am

This is why Patriot Act and FISA need to be repealed, and start over from scratch, by building strong and specific restrictions for the NSA, and stronger privacy for us.

Snowden was right. If it's just "policy", that policy can change with different leaders, or even under the same leaders.
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Anonymous Coward, 9 Aug 2013 @ 10:39am

Re: Apparently Obama can use a Vulcan Mind Trick
Tangent: I though Jedi had a mind trick, and Vulcan had a neck pinch?
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Anonymous Coward, 9 Aug 2013 @ 10:53am

Re: It does say they can't run USP queries?
You better read the Guardian article for a better understanding of the subject, but the gist of it is this:

The NSA et al told us can't run queries on American citizens under the PRISM program unless they were in direct contact with foreigners. PRISM is directed at foreigners and foreign contacts, they claimed.

Well, this new tidbit shreds that notion because it points out that in 2011 there was a rule change that allows specific US persons to be targeted. You see the inconsistency between the statements and the reality?

At least they bothered to try to implement some sort of oversight over this program, but I doubt it was in any way effective, given their track record as of late...
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Vidiot (profile), 9 Aug 2013 @ 10:59am

More fundamental question
This raises the semantic issue of "lawmaking" vs. "rulemaking". The Patriot Act (clue: "Act") was an enacted law, with, for better or worse, at least a modicum of publicly-witnessed debate; can its fundamental provisions be oh-by-the-way amended by a mere rules change? How far can "rules" go in shaping policy and practice, before the scope is exceeded, and the only remedy is to amend or enact an actual law?
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silverscarcat (profile), 9 Aug 2013 @ 11:08am

Re: Re: Apparently Obama can use a Vulcan Mind Trick
Vulcan's have Mind Meld

Jedi have Mind Trick

...

I feel sad now.
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saulgoode (profile), 9 Aug 2013 @ 11:10am

Wrong loophole
I don't buy that collecting all the data on U.S. cititzens is consistent with the Constitution, regardless whatever oversights or limitations may be in place concerning the querying of the resultant database.
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Anonymous Coward, 9 Aug 2013 @ 11:13am

Re: Re: Apparently Obama can use a Vulcan Mind Trick
Obama mixed up metaphors a while back.
http://www.npr.org/blogs/thetwo-way/2013/03/01/173251266/jedi-vulcan-mind-meld-mind-trick-wha t-was-obama-thinking
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Anonymous Coward, 9 Aug 2013 @ 11:22am

and the name of who gave this 'new' permission? whoever it was wants to be hauled over the coals about it!
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Anonymous Coward, 9 Aug 2013 @ 11:28am

Re: It does say they can't run USP queries?
It says ANALYSTS (ie. contractors) can't run queries on USP's until THE NSA comes up with an oversight program that is approved by the DOJ and ODNI. It says nothing about the NSA itself being prohibited from running queries without the oversight process in place. But if the NSA gets to create the oversight process, then there really isn't much point to it then is there. That's like my 6 year old daughter getting to decide if she should be punished for doing something she's not supposed to do. And the DOJ and ODNI having to approve it doesn't make it any better. They never benefit from the power of the access to NSA data and have perfectly clean history of not never abusing power and instead telling the NSA, "Oh no, that's TMI. We don't want to be able to know any of that stuff." Riiiiiiiight.
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Anonymous Coward, 9 Aug 2013 @ 11:31am

Re: Re: It does say they can't run USP queries?
IF they did try to implement some sort of oversight I'm sure it's all lip service like the PCLOB just so they can say, "Look. We have an oversight program for this."
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Anonymous Coward, 9 Aug 2013 @ 11:45am

Re: Re: Re: Apparently Obama can use a Vulcan Mind Trick
This is a reference to Obama's jumbled reference:

http://www.techdirt.com/articles/20130304/13402222194/white-house-turns-star-wars-star -trek-mistake-into-funny-meme.shtml
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Anonymous Coward, 9 Aug 2013 @ 12:25pm

Re: Indictments...
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

and then more
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Anonymous Coward, 9 Aug 2013 @ 12:25pm

Re: Re: Indictments...
In this case the 3-power setup has been more or less put out of power:

The judiciary is a "secret court" with no real connection to the real judiciary.

The legislative is a select few from congress who can deny the rest of the legislative access on account of their field being littered with confidential and secret information. The system relies on the priviledged giving access to relevant information for a subject to be actually discussed and that is not happening.

The executive is only truely accountable to the people and since this field is covered in information that cannot legally be shared with the people, there is no real limit to their suggestions if they can keep the legislative select few greased.
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mc, 9 Aug 2013 @ 12:30pm

Law abiding?
"warrantless searches for the phone calls or emails of law-abiding Americans."

Law-abiding? It doesn't matter *what* you've done or which laws you've broken, a warrant is __still__ required by the only law that matters.
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Rob, 9 Aug 2013 @ 12:38pm

Re: Wrong loophole
"I don't buy that collecting all the data on U.S. cititzens is consistent with the Constitution"

So? Like it's been for a while now: You can't prove they're collecting data on anyone because that's a state secret. Therefore no one has standing to challenge the constitutionality of the data collection. Something can't be ruled unconstitutional until it's challenged. Ergo, whether or not this is consistent with the Constitution is moot.

And even that doesn't matter. Secret court doesn't care what we think is constitutional even if we had a truckload of proof.
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Anonymous Coward, 9 Aug 2013 @ 2:10pm

Secret court is secret. The more that comes out the more complacent the population becomes. This is revolting! and I do mean it's time for revolt!
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M. Alan Thomas II (profile), 9 Aug 2013 @ 6:17pm

I'm vaguely amused that PINWHALE comes in "Sweet* and Sour*".
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Bruce, 10 Aug 2013 @ 11:06am

NONE Of them.
What contention by Obaminions HASN'T Been A LIE?
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Lurker Keith, 12 Aug 2013 @ 2:39am

Re: NONE Of them.
The cake?

Sorry, couldn't resist.
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Jose_X, 19 Aug 2013 @ 5:09pm

Rule or exception?
Where was the rule? Does it allow queries of any sort on any person for any reason?

Or might it be something akin to the warrantless search exception?

Honestly, is that information public or are we assuming at this point in time?
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