Let’s turn to Prism: the streamlined, electronic seizure of communications from Internet companies. In combination with what we have already learned about the N.S.A.’s access to telecommunications and Internet infrastructure, Prism is further proof that the agency is collecting vast amounts of emails and other messages — including communications to, from and between Americans.
The government justifies Prism under the FISA Amendments Act of 2008. Section 1881a of the act gave the president broad authority to conduct warrantless electronic surveillance. If the attorney general and the director of national intelligence certify that the purpose of the monitoring is to collect foreign intelligence information about any non-American individual or entity not known to be in the United States, the Foreign Intelligence Surveillance Court can require companies to provide access to Americans’ international communications. The court does not approve the target or the facilities to be monitored, nor does it assess whether the government is doing enough to minimize the intrusion, correct for collection mistakes and protect privacy. Once the court issues a surveillance order, the government can issue top-secret directives to Internet companies like Google and Facebook to turn over calls, emails, video and voice chats, photos, voiceover IP calls (like Skype) and social networking information.
Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”
The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target’s “foreignness” — as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.
How could vacuuming up Americans’ communications conform with this legal limitation? Well, as James R. Clapper Jr., the director of national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.
If there’s a law against torturing the English language, James Clapper is in real trouble.
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