(UPDATED July 5, 2017)
During his really initiatory of all interview, sometime NSA contractor Edward Snowden pretended that he, sitting behind his desk "certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, or fifty-fifty the President if I had a personal e-mail".
Right from the beginning, intelligence experts doubted that private NSA analysts would convey such far-reaching powers. By looking at the legal authorities together with procedures that regulate NSA's collection efforts, it becomes clear that it is highly unlikely that Snowden, or other analysts could convey done that inward a legitimate way.
Targeting US citizens nether FISA authority
The National Security Agency (NSA) collects unusual signals intelligence exterior the US, merely inward a few special cases, it is also allowed to collect information nigh US citizens or to collect information within the US. This is shown inward the next conclusion tree:
Diagram amongst a conclusion tree showing the diverse legal authorities
nether which NSA tin collect Signals Intelligence (SIGINT)
(click to enlarge)
> See also: NSA's Legal Authorities
In the interview, Snowden was talking nigh wiretapping ordinary US citizens every bit good every bit US authorities officials. According to the Foreign Intelligence Surveillance Act (FISA) from 1978, the NSA is entirely allowed to monitor the communications of such US citizens, US residents or US corporations when they are suspected of espionage or terrorism.
If NSA thinks that's the case, so they convey to apply for an private warrant from the Foreign Intelligence Surveillance Court (FISC) yesteryear showing that at that spot is in all likelihood drive that the intended target is an agent of a unusual powerfulness (section 105 FISA/50 USC 1805), or associated amongst a grouping engaged inward international terrorism. Depending on the type of surveillance, the FISC so issues a warrant for a flow of ninety days, 120 days, or a year.
Acquiring an private FISA warrant
So, when Snowden truly had the authorisation to wiretap ordinary Americans together with US authorities officials fifty-fifty upwards to the President, so he would convey had to render probable cause that these people were either unusual agents or related to terrorist groups.
For the President this would entirely live imaginable inward films or boob tube series, together with it would entirely apply to really few other Americans. In other cases the NSA would together with volition non acquire a FISA warrant to eavesdrop on US citizens or residents.
Snowden oftentimes said that he sees the FISA Court every bit a mere "rubber stamp" because it approves almost all requests from the intelligence agencies. However that may be, obtaining an private FISA warrant isn't easy: a asking needs approving of an analyst's superior, the NSA's full general counsel, together with the Justice Department, before it is presented to the FISA judge.*
Collection nether department 702 FAA
Maybe some people would ask: wouldn't it live easier to target US persons through the PRISM program, nether which NSA collects information from major US cyberspace companies similar Facebook, Google, Yahoo, Microsoft?
The respond is no, despite the fact that PRISM is governed yesteryear department 702 of the FISA Amendments Act (FAA), which was designed to collect information faster together with easier. As such, department 702 was enacted inward 2008 to legalize the notorious warrantless wiretapping program, authorized yesteryear president George W. Bush right after the attacks of 9/11.
But what many people don't realize, is that the special authorisation of department 702 FAA tin entirely live used to collect communications of non-US persons located exterior the United States.
The NSA uses department 702 non entirely to assemble information through the PRISM program, merely also yesteryear filtering cyberspace backbone cables operated yesteryear major US telecommunications providers, inward gild to select grip of the communications associated amongst specific e-mail addresses. This is called Upstream collection.
(click to enlarge)
Section 702 FAA certifications
What makes department 702 FAA collection faster is that instead of an private warrant from the FISA Court, NSA gets a full general warrant for some specific topics, which is valid for 1 year.
For this, the US Attorney General together with the Director of National Intelligence (DNI) annually certify that specific legal requirements for the collection of time-sensitive together with higher volumes of information convey been met together with how these volition live implemented.
These The Washington Post from July 5, 2014, it was said that Snowden, inward his lastly seat every bit a contractor for Booz Allen at the NSA’s Hawaii operations center, had "unusually broad, unescorted access to raw SIGINT nether a special ‘Dual Authorities’ role", which reportedly refers to both department 702 FAA (for collection within the US) together with EO 12333 (for collection overseas).
Those 2 authorities allowed him to search stored content together with initiate novel collection without prior approving of his search terms. "If I had wanted to trace a re-create of a judge’s or a senator’s e-mail, all I had to do was motion into that selector into XKEYSCORE", so he did non demand to circumvent [access] controls, Snowden said to the Post.
So, when Snowden plainly had the 702 FAA together with EO 12333 authorities, this agency he wasn't authorized to target American judges or senators, inward the feel of initiating real-time wiretapping, because for that the traditional FISA authorisation together with a warrant from the FISC is needed. It looks similar he confirms this yesteryear proverb "If I had wanted to trace a re-create of a judge’s or a senator’s e-mail", which sounds to a greater extent than similar pulling such an e-mail from a database.
This also seems to live confirmed yesteryear the fact that Snowden points to XKeyscore for getting such e-mails. XKeyscore is mainly used to search information that already convey been collected inward 1 way or another, peculiarly at access points exterior the US. The mutual way to start novel surveillances is through the Unified Targeting Tool (UTT, run into below).
Backdoor searches
Indeed there's a legal way to search for communications of US persons inward information that convey already been collected: according to an entry inward an NSA glossary published yesteryear The Guardian inward August 2013, the FISA Court on Oct 3, 2011 allowed using sure US someone names together with identifiers every bit query damage on information already collected nether 702 FAA:
This became known every bit "back-door searches". These queries mightiness live questionable, merely different the term "back-door" suggests, they are non illegal, every bit the practise was approved yesteryear the FISA Court. In a letter to senator Wyden from June 2014, DNI Clapper revealed that non entirely NSA, merely also CIA together with FBI are allowed to query already collected 702 FAA information inward this way.
In August 2014, sometime State Department official John Napier Tye revealed that NSA is also allowed to utilization US someone names to query information collected nether EO 12333, merely entirely those that convey been approved yesteryear the Attorney General together with for persons considered to live agents of a unusual power.
Backdoor search approvals
Clapper explained that these backdoor queries are dependent land to oversight together with express to cases where at that spot is "a reasonable solid set down to await the query volition render unusual intelligence". Querying yesteryear using US someone identifiers is entirely allowed for information from PRISM, non from Upstream collection. In 2013, NSA approved 198 US someone identifiers to live queried against the results of PRISM collection.
The PCLOB study (pdf) nigh 702 FAA operations says that "content queries using U.S. someone identifiers are non permitted unless the U.S. someone identifiers convey been pre-approved (i.e., added to a white list) through 1 of several processes, several of which comprise other FISA processes".
The NSA's Minimization Procedures from Oct 2011 also state that US someone identifiers may entirely live used every bit query damage after prior internal approving (as is the instance amongst such queries nether EO 12333).
For such searches, NSA for representative approved identifiers of US persons for whom at that spot were already private warrants from the FISA Court nether department 105 FISA or department 704 FAA. US someone identifiers tin also live approved yesteryear the NSA’s Office of General Counsel after showing that using that US someone identifier would "reasonably in all likelihood render unusual intelligence information". All approvals to utilization US someone identifiers to query content must live documented.
Circumventing official procedures
So far, nosotros examined the legal options for analysts to acquire access to American e-mails, merely inward an interview from June 10, 2013, Glenn Greenwald explained that the "authority" Snowden was talking about, was non an authorisation inward a legal sense.
According to Greenwald, Snowden meant that "NSA convey given [analysts] the powerfulness to live able to snuff it inward together with scrutinize the communications of whatever American; it may non live legal, merely they convey the powerfulness to do it".
So it may non live legally allowed that "any analyst at whatever fourth dimension tin target anyone, whatever selector, anywhere", merely they may convey the technical capability to do so. In other words, wiretapping anyone is entirely possible when analysts (intentionally) circumvent the official procedures together with safeguards.
In this interpretation, Snowden plainly warned against the opportunity that private analysts could misuse their power, which contradicts his claim before on inward the interview, proverb he that the whole agency "targets the communications of everyone" together with so ingests, filters, analyses together with stores them.
Unified Targeting Tool
Illegally intercepting American e-mails yesteryear circumventing official procedures could live conducted yesteryear manipulating targeting instructions given through the Unified Targeting Tool (UTT), which is a webbased tool that is used to start the actual collection of data.
H5N1 rogue analyst could for representative confirm that there's a FISA warrant, when there's not, or render a faux foreigness indicator, so someone could live targeted nether the authorisation of Executive Order 12333, which doesn't require the physical care for of acquiring a FISA courtroom approval.
H5N1 rare screenshot of the Unified Targeting Tool (UTT), which shows some of the
fields that convey to live filled in. We run into that information nigh a "FAA Foreign
Governments Cert." is missing together with thence non valid to business (see below),
together with also a drib downward carte du jour amongst diverse Foreigness Factors.
Unfortunately no manual for this tool has been disclosed, although that would convey been useful to larn to a greater extent than nigh internal safeguards to preclude misuse. The NSA itself also didn't unloose such documents, which could convey contributed to to a greater extent than trust inward the way they truly operate.
Targeting procedures
We convey no details nigh the NSA's internal physical care for for intercepting private US citizens, merely nosotros do know nigh the physical care for for collection nether the PRISM program.
As PRISM is used for collecting information nigh foreigners, it tin live considered somewhat less restrictive than collecting information nigh US persons, for which at that spot may live some extra safeguards together with checks. The PRISM tasking physical care for is shown inward this slide:
Slide that shows the PRISM tasking process
(click to enlarge)
We run into that after the analyst has entered the selectors (like a target's telephone number or e-mail address) into the UTT, this has to live reviewed together with validated yesteryear (in this case) either the FAA adjudicators inward the S2 Product Line, or the Special FISA Oversight unit.
H5N1 lastly review of the targeting asking is conducted yesteryear the Targeting together with Mission Management unit. Only so the selectors are released together with position on lists which the FBI presents to the diverse cyberspace companies, who volition so trace the associated communications from their servers together with systems.
For targeting foreigners on collection systems exterior the US (which is governed yesteryear EO 12333), at that spot are less restrictions, merely also this is notwithstanding non completely at the volition of private analysts. At to the lowest degree every eavesdropping functioning has to live inward accordance amongst the goals laid inward the NSA's Strategic Mission List together with other policy documents.
Incidents
Nonetheless, late declassified NSA reports to the president's Intelligence Oversight Board (IOB) demo that at that spot convey been cases inward which at that spot was an abuse of the collection system, either wilfully or accidentally. The bulk of incidents both nether FISA together with EO 12333 authorisation occured because of human error.
It shows that despite the safeguards, some unauthorized targeting together with querying tin notwithstanding happen, merely also that the internal oversight mechanisms detected them afterwards, amongst the selectors involved beingness detasked, the non-compliant information beingness deleted together with the analysts beingness counseled.
Conclusion
Snowden talked every bit if it would live slow for NSA analysts to wiretap anyone, merely every bit nosotros convey seen, the official procedures do non authorize targeting US persons. He plainly did convey the authorisation to utilization US someone identifiers for querying information that were already collected.
But reverse to what Snowden said, these queries are entirely allowed after prior approval, which makes it highly unlikely that e-mail addresses from American judges or senators, allow lonely from the President would snuff it far through.
Without an slow legal way, Glenn Greenwald tried to rescue Snowden's claim yesteryear proverb that it wasn't nigh legal authorities, merely nigh the technical capabilities that enable NSA analysts to access American e-mails, whether that would live legal or not.
Internal NSA reports do demo that it is possible to motion into wrong or unapproved e-mail addresses into the collection system, merely also that most of these cases are (afterwards) detected yesteryear oversight systems.
(Edited after adding Greenwald's interpretation of Snowden's words together with adding the non-compliance incidents. Also added an addendum nigh Snowden's authorities based upon a 2014 study yesteryear The Washington Post, together with added an explanation nigh the back-door searches)
Links together with Sources
- Privacy together with Civil Liberties Oversight Board: Section 702 Program Report (pdf)
- Webpolicy.org: Executive Order 12333 on American Soil, together with Other Tales from the FISA Frontier
- Stanford Law Review: Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp?
- The Guardian: The tiptop hole-and-corner rules that allow NSA to utilization US information without a warrant
- EmptyWheel.net: Postings nigh department 702 FAA
- Robert S. Litt, ODNI General Counsel: An Overview of Intelligence Collection
- Related documents:
- President Policy Direction (PPD) 28 Section iv Procedures (pdf) (2015)
- Foreign Intelligence Surveillance Act - Summary Document (2008)
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