The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.
Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed "simply based on an analyst deciding that."
If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he learned. "I was rather startled," said Nadler, an attorney and congressman who serves on the House Judiciary committee.
Not only does this disclosure shed more light on how the NSA's formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.
Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler's disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.
The disclosure appears to confirm some of the allegations made by Edward Snowden, a former NSA infrastructure analyst who leaked classified documents to the Guardian. Snowden said in a video interview that, while not all NSA analysts had this ability, he could from Hawaii "wiretap anyone from you or your accountant to a federal judge to even the president."
There are serious "constitutional problems" with this approach, said Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who has litigated warrantless wiretapping cases. "It epitomizes the problem of secret laws."
The NSA yesterday declined to comment to CNET. A representative said Nadler was not immediately available. (This is unrelated to last week's disclosure that the NSA is currently collecting records of the metadata of all domestic Verizon calls, but not the actual contents of the conversations.)
Earlier reports have indicated that the NSA has the ability to record nearly all domestic and international phone calls -- in case an analyst needed to access the recordings in the future. A Wired magazine article last year disclosed that the NSA has established "listening posts" that allow the agency to collect and sift through billions of phone calls through a massive new data center in Utah, "whether they originate within the country or overseas." That includes not just metadata, but also the contents of the communications.CNET notes that companies like AT&T, Verizon and other telecommunications companies are afforded absolute immunity from civil liability or criminal liability for allowing NSA access to your private communications thanks to a law Congress passed in 2008 and renewed in 2012. That law says that the NSA "may not intentionally target any person known at the time of acquisition to be located in the United States." Some legal experts believe the NSA interprets the law to mean that as long as it is vacuuming up all the data it can domestically that it cannot be found to be targeting a specific citizen. CNET also notes comments former FBI counter terrorism agent Tim Clemente made last month to CNN that the NSA had the ability to access the content of phone calls Americans have made in the past during a national security investigation. "All of that stuff is being captured as we speak whether we know it or like it or not," Clemente said.
This weekend, The Hill also reported that only 47 of the Senate's 100 members bothered to show up for the private briefing the NSA provided to members of the Senate this past week on its surveillance activities. No word on whether Indiana's Sen. Donnelly or Sen. Dan Coats attended the briefing. The media in Indiana could care less about this issue if you haven't noticed. They're all owned by corporate media giants which support the NSA's massive surveillance operations of all Americans and by implication, the trashing of the U.S. Constitution.