The Times reported on Thursday that the National Security Agency is temporarily copying and then searching through the content of "apparently most" emails and other text-based communications that cross the U.S. border. Officials have previously acknowledged that the NSA is intercepting communications between Americans and foreigners targeted for surveillance overseas. But what the Times has now reported goes further than that -- potentially all communications crossing the border are being examined for information linked to targeted foreigners.
A hint about this surveillance has been sitting in a leaked National Security Agency document put online by The Guardian in June. The document, which laid out how the NSA can carry out the 2008 Foreign Intelligence Surveillance Act, contains a paragraph mentioning how the NSA "seeks to acquire communications about the target that are not to or from the target." Keep that phrase in mind: about the target.
Explaining how cross-border communications are handled, an anonymous senior intelligence official told the Times that a computer searches the data for keywords or other "selectors." Those that return a match are stored, to be examined later by human analysts. Non-matches are deleted, according to the official, who said the process takes "a small number of seconds" and the system cannot perform "retrospective searching."
So does this contradict what intelligence officials have told Congress and the public about surveillance programs? In June, for example, NSA Deputy Director John Inglis told a House Intelligence Committee hearing that the government does "not target the content of U.S. person communications without a specific warrant anywhere on the earth." The email sifting revealed by the Times is warrantless. Doesn't that count as targeting? The government may not think so. And here's where that "about the target" phrase might be important.
Timothy Edgar, a former intelligence official, told the Times that there had been much internal discussion in the government over the rule allowing collection "about" a targeted person, as opposed to surveillance directly targeting that person.
"There is an ambiguity in the law about what it means to 'target' someone," Edgar told the Times. "You can never intentionally target someone inside the United States. Those are the words we were looking at. We were most concerned about making sure the procedures only target communications that have one party outside the United States."