Houston Chronicle

Networks provide NSA less data than suspected, report shows

- By Charlie Savage

WASHINGTON — A newly declassifi­ed report by the National Security Agency’s inspector general suggests that the government is receiving far less data from Americans’ internatio­nal Internet communicat­ions than privacy advocates have long sus- pected.

The report indicates that when the NSA conducts Internet surveillan­ce under the FISA Amendments Act, companies that operate the Internet are probably turning over only the emails of the NSA’s foreign targets — not all of the data crossing their switches, as the critics had presumed.

The theory that the gov- ernment is rooting through vast amounts of data for its targets’ messages has been at the heart of several lawsuits challengin­g such surveillan­ce as violating the Fourth Amendment.

The report, obtained by the New York Times through a Freedom of Informatio­n Act lawsuit, was classified when completed in 2015, and it still contains many redactions.

But several uncensored sentences appear to indicate that the government supplies its foreign targets’ “selectors” — like email addresses — to the network companies that operate the Internet, and the companies sift through the raw data for any messages containing them, turning over only those.

The distinctio­n is impor- tant for evaluating crucial constituti­onal issues raised by how to apply Fourth Amendment privacy rights to new communicat­ions and surveillan­ce technologi­es. Government secrecy about Internet wiretappin­g has prevented judges from adjudicati­ng the issues in open court.

Patrick Toomey, an American Civil Liberties Union lawyer who is helping lead one of several lawsuits challengin­g the NSA’s Internet surveillan­ce, argued that even if the companies were sifting the data themselves, the constituti­onal issues were the same if the companies were doing something they would not otherwise do at the government’s direction.

“The equivalent would be if AT&T were compelled to put every phone call through a voice transcript­ion and then give to the government” copies of only those calls that were linked to a suspect, Toomey said. “We would find that disturbing, not just because it could be abused, but because it involves the phone company listening to every phone call.”

The network companies that operate the Internet, like AT&T and Verizon, do not publicly discuss how the surveillan­ce system works, and the government declined to comment about the newly disclosed report.

Congress commission­ed the inspector general report after the leaks about surveillan­ce by former intelligen­ce contractor Edward Snowden. A central focus was the FISA Amend- ments Act program, which permits warrantles­s collection of communicat­ions on U.S. soil so long as the target is a noncitizen abroad .

One part of the program, called Upstream, involves the collection of emails and other Internet messages as they cross network switches.

The report discusses how network providers are legally compelled to give the NSA communicat­ions “related to tasked selectors.”

A senior administra­tion official, speaking on the condition of anonymity, said there had been no official policy decision, as part of disclosing the inspector general report, to say more about how Upstream collection works than what the government had said previously.

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