A Foreign Intelligence Surveillance Court opinion released yesterday shed more light on how the National Security Agency collects Americans’ email data, highlighting the disconnect between the NSA’s collection practices and the Obama Administration’s characterization of email surveillance under the PRISM program.
The FISA Court opinion held that methods used by the NSA from 2007 to 2011 of collecting email data — including the content of email subject lines, senders, and times of transmission — violated the Fourth Amendment and Federal statutes. While the NSA can collect emails involving foreign senders and recipients under the Foreign Intelligence Surveillance Act, it cannot collect purely domestic emails.
Until 2011, the NSA’s collection of emails involved collecting “bundles” of emails from individuals’ inboxes, failing to separate the purely domestic emails bundled with the “targeted” emails involving non-U.S. persons. Basically, the NSA was collecting screenshots of individuals’ inboxes when only one of many emails in the screenshot was the subject of the investigation.
Since details of the PRISM email surveillance program were leaked in June, President Obama has repeatedly told Americans not to worry because “the NSA cannot target your emails.” While the President has never clarified what “targeting” means, this opinion makes it clear that, at least before 2011, the fact that Americans’ emails were not “targeted” doesn’t mean they were not collected.
Several proposed amendments to key sections of the Foreign Intelligence Surveillance Act, including a bill that failed in a close House vote last month, would prohibit the “bulk” collection of data. These amendments would require the NSA to show that someone is the subject of an investigation before it collects that person’s data.
Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.