By Mike Masnick | TechDirt | June 7th 2013
Well, well. In the aftermath of the revelations that the NSA is getting records of every phone call from Verizon, followed up by the news that most of the biggest tech companies are supposedly giving direct access to the NSA, the intelligence community is responding the same way it always does: with weasel words. First up, you can see Director of National Intelligence James Clapper’s statement about the spying, which we’ll be discussing again in a bit.
But, a bunch of folks have been reasonably pointing out that Clapper appears to have lied to Congress. Of course, it’s not like this wasn’t easily called. Two years ago, we wrote about Clapper’s answers to Senators Wyden and Udall, which we pointed out was a ridiculous answer that was clearly sidestepping the real questions. However, looking over that letter again now, and having become a bit more familiar with the weasel words the NSA likes to use, it’s easy to look at Clapper’s statement and explain why he can “stand by it” while the clear implication of it was the opposite of what he meant.
You asked whether communications of Americans have been collected… Section 702 of the FAA [FISA Amendments Act] explicitly prohibits the intentional targeting of persons reasonably believed to be located in the United States or United States persons located abroad. The Intelligence Community has put in place a variety of procedures, which have been approved by the FISA Court as required by law, to ensure that only persons reasonably believed to be located outside the United States are targeted and to prevent the intentional acquisition of any communications as to which the sender and all intended recipients are known to be located in the United States. Guidelines are also required by law to ensure compliance with other limitations on FAA collection, including the requirement that a U.S. person may not be intentionally targeted under section 702. If it is discovered that a target has entered the U.S. or is a U.S. person, he or she is promptly detargeted and reports are made as appropriate to the Department of Justice (DOJ), the Office of the Director of National Intelligence (ODNI) and the FISA Court. Moreover, when communications from persons located in the United States are collected because they are communicating with a lawful target, the privacy and civil liberty rights of U.S. persons are protected through the careful implementation of the procedures required under the FAA to “minimize the acquisition and retention, and prohibit the dissemination ‘of information about U.S. persons.’”
Most people would read this to be him saying that they do not spy on Americans. And that’s obviously what he’s trying to imply. But that’s not what he’s actually saying. He’s using the NSA’s favorite weasel word: “target.” Now, most people assume that means one of the people on the call must be outside the US. But, you could — if you were devious intelligence official trying to mislead Congress and the American public (hypothetically) — interpret the word “target” to mean “if we, in general are ‘targeting’ foreign threats, no matter what they might be like, and this information we’re collecting might help in that process, then we can snarf up this data.”
In other words, most people think that “target” would mean one of the people on the phone. But, the NSA means “this overall investigation is about targeting foreign threats, so we can take whatever data we want because the goal is to stop foreign threats with it — and therefore our mandate not to spy on Americans doesn’t apply.”
So, it shouldn’t be particularly surprising to see that the administration’s “response” to this is to highlight, yet again, that this only “targets” non-US persons:
Information collected through a U.S. government surveillance program that taps into the servers of internet companies targets only non-U.S. persons living outside the United States, a senior administration official said on Thursday.
The U.S. law that allows the collection of data under this program does not allow the targeting of any U.S. citizen or of any person located in the United States, the official said, speaking on condition of anonymity.
Right, but whether or not they’re “targeting” a person, is separate from whether or not they’re spying on the data of Americans. As long as it’s all part of a process that “targets” non-US persons, they can claim that they’re playing by the rules.
Given that, however, I don’t see how Clapper can reasonably standby the following statements:
Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
Clapper: No sir.
Wyden: It does not?
Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.
Clapper is insisting that he didn’t lie in his comments, but he then pretends that he was only talking about email:
What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that.
Except, that’s not what he was asked, nor was it what he said. He was specifically asked if the NSA collects any type of data at all, and he said no. Up above, he was using weasel words, but here it looks like he was flat out lying directly to Congress. Usually, Congress doesn’t like that.