In a letter to Senator Ron Wyden (D-OR), Director of National Intelligence James Clapper acknowledged that the National Security Agency (NSA) has been exploiting a “loophole” to search through the electronic communications of Americans without a warrant. “These queries were performed pursuant to minimization procedures approved by the Fisa court and consistent with the statute and the fourth amendment,” Clapper wrote in the letter.
The so-called loophole, in Section 702 of FISA, allows thorough searches of communications of suspected foreign terrorists outside of the United States without a warrant which includes reading emails and listening to phone conversations. But monitoring of communications between suspected terrorists and Americans is what has come under criticism- monitoring Americans in addition to non-American suspects falls into a vague area of what is allowed under Section 702.
Senator Wyden and Senator Mark Udall (D-CO), both critics of government spying, have voiced concern that such searches are “unacceptable”. “It raises serious constitutional questions, and poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure a warrant or emergency authorization before monitoring his or her communications. This fact should be beyond dispute,” read the Wyden-Udall statement.
This admission from Clapper directly contradicts a statement President Obama made last June when he said, “Nobody is listening to your telephone calls. That’s not what this program is about. As was indicated, what the intelligence community is doing is looking at the numbers and durations of calls. They’re not looking at names and they’re not looking at content.”
As it turns out Americans are indeed having their phone calls and emails sifted through, and in the statement from Wyden and Udall they responded to Obama’s past statement by saying, “Senior officials have sometimes suggested that government agencies do not deliberately read Americans’ emails, monitor their online activity or listen to their phone calls without a warrant. However, the facts show that those suggestions were misleading, and that intelligence agencies have indeed conducted warrantless searches for Americans’ communications using the ‘back-door search’ loophole in section 702 of the Foreign Intelligence Surveillance Act.”
Wyden and Udall are both calling for a closure to this loophole, but the Obama administration has said that obtaining warrants is “burdensome” and time consuming.
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