Original Article:

The National Security Agency is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance, according to intelligence officials.

The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, a practice that government officials have openly acknowledged. It is also casting a far wider net for people who cite information linked to those foreigners, like a little used e-mail address, according to a senior intelligence official.

While it has long been known that the agency conducts extensive computer searches of data it vacuums up overseas, that it is systematically searching — without warrants — through the contents of Americans’ communications that cross the border reveals more about the scale of its secret operations.

It also adds another element to the unfolding debate, provoked by the disclosures of Edward J. Snowden, the former N.S.A. contractor, about whether the agency has infringed on Americans’ privacy as it scoops up e-mails and phone data in its quest to ferret out foreign intelligence.

 Government officials say the cross-border surveillance was authorized by a 2008 law, the FISA Amendments Act, in which Congress approved eavesdropping on domestic soil without warrants as long as the “target” was a noncitizen abroad. Voice communications are not included in that surveillance, the senior official said.

Hints of the surveillance appeared in a set of rules, leaked by Mr. Snowden, for how the N.S.A. may carry out the 2008 FISA law. One paragraph mentions that the agency “seeks to acquire communications about the target that are not to or from the target.” The pages were posted online by the newspaper The Guardian on June 20, but the telltale paragraph, the only rule marked “Top Secret” amid 18 pages of restrictions, went largely overlooked amid other disclosures.

To conduct the surveillance, the N.S.A. is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border. The senior intelligence official, who, like other former and current government officials, spoke on condition of anonymity because of the sensitivity of the topic, said the N.S.A. makes a “clone of selected communication links” to gather the communications, but declined to specify details, like the volume of the data that passes through them.

The official said that a computer searches the data for the identifying keywords or other “selectors” and stores those that match so that human analysts could later examine them. The remaining communications, the official said, are deleted; the entire process takes “a small number of seconds,” and the system has no ability to perform “retrospective searching.”

The official said the keyword and other terms were “very precise” to minimize the number of innocent American communications that were flagged by the program. At the same time, the official acknowledged that there had been times when changes by telecommunications providers or in the technology had led to inadvertent overcollection. The N.S.A. monitors for these problems, fixes them and reports such incidents to its overseers in the government, the official said.

The disclosure sheds additional light on statements intelligence officials have made recently, reassuring the public that they do not “target” Americans for surveillance without warrants.

Timothy Edgar, a former intelligence official in the Bush and Obama administrations, said that the rule concerning collection “about” a person targeted for surveillance rather than directed at that person had provoked significant internal discussion.

“There is an ambiguity in the law about what it means to ‘target’ someone,” Mr. Edgar, now a visiting professor at Brown, said. “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.

The rule they ended up writing, which was secretly approved by the Foreign Intelligence Surveillance Court, says that the N.S.A. must ensure that one of the participants in any conversation that is acquired when it is searching for conversations about a targeted foreigner must be outside the United States, so that the surveillance is technically directed at the foreign end.

Americans’ communications singled out for further analysis are handled in accordance with “minimization” rules to protect privacy approved by the surveillance court. If private information is not relevant to understanding foreign intelligence, it is deleted; if it is relevant, the agency can retain it and disseminate it to other agencies, the rules show.

While the paragraph hinting at the surveillance has attracted little attention, the American Civil Liberties Union did take note of the “about the target” language in a June 21 post analyzing the larger set of rules, arguing that the language could be interpreted as allowing “bulk” collection of international communications, including of those of Americans.

The senior intelligence official argued, however, that it would be inaccurate to portray the N.S.A. as engaging in “bulk collection” of the contents of communications. “ ‘Bulk collection’ is when we collect and retain for some period of time that lets us do retrospective analysis,” the official said. “In this case, we do not do that, so we do not consider this ‘bulk collection.’ ”

The senior intelligence official said that the “about the target” surveillance had been valuable, but said it was difficult to point to any particular terrorist plot that would have been carried out if the surveillance had not taken place. He said it was one tool among many used to assemble a “mosaic” of information in such investigations. He also pointed out that the surveillance was used for other types of foreign-intelligence collection, not just terrorism, the official said.

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I have to admit, I was shaking my head when I saw this headline. All the times I defended the U.S. governments intelligence gathering programs, only to find out that they are pursuing “bulk collection” and reading Americans emails and text messages. Then I actually read the article…

This sounds like another well designed program, aimed at collecting the maximum amount of intelligence while minimizing any invasion of privacy inherent in intelligence collection. These programs are, at their core, utilitarian–they are aimed at maximizing security for America and our allies–while taking a pragmatic stance on what Steven G. Bradbury (head of the Office of Legal Counsel in the United States Department of Justice during the George W. Bush administration) calls “at worst, a minimal burden upon legitimate privacy rights.”

The program is not a “bulk collection” program, at least according to traditional definitions of “collection”:  “an accumulation of objects gathered for study, comparison, or exhibition or as a hobby” with synonyms such as “assemblage“, “library“, and related words such as  “hoard“, “repertoire“, “repertory“, “reserve“, “stock“, “stockpile“, “store“, and “accumulation“, it is clear that collection connotes storing and analyzing data.

The NSA program, on the other hand, sifts through metadata coming in or out of the U.S. (not between two U.S. citizens or 2 parties on U.S. soil, there are other more direct means of gathering intelligence on those relationships), flags relevant intelligence, and deletes the vast majority of irrelevant data. The entire process takes “a small number of seconds,” and the system has no ability to perform “retrospective searching.” Americans’ communications singled out for further analysis are handled in accordance with “minimization” rules to protect privacy approved by the surveillance court. If private information is not relevant to understanding foreign intelligence, it is deleted; if it is relevant, the agency can retain it and disseminate it to other agencies, the rules show.

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It seems that all possible safeguards and oversights are in place. On complex issues such as balancing rights and national security we should defer to the experts, that is what representative democracy is all about.

Rep. Tom Cole, R-Okla., says he recently voted to keep a controversial National Security Agency data collection program in part because he trusts lawmakers who know it best.

“I’m going to go with the people that actually know the program and looked at it,” he said.

His position had bipartisan support, he explained on MSNBC’s Morning Joe:

“Every member in both parties who served on the Intelligence Committee voted in favor of this.”

Politifact rated this claim “mostly true”; 1 of the 21 House Intelligence Committee voted in favor of  Amash Ammendment to end NSA intelligence gathering. Those who understand the complex cost-benefit analysis of intelligence gathering programs overwhelmingly support their continued existence.

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If anything good came from the Snowden leaks, it is that we are now having open dialogue about intelligence gathering. Furthermore, intelligence officials have become more transparent, to the point of disclosing less-sensitive information about intelligence gathering as opposed to having it exposed.

Snowden should have come home to have his day in a civilian court, to be judged by a jury of his peers (who tend to be sympathetic of his actions). Instead he rebuffed American offers, is living in dictatorial Russia, and is now truly “an enemy of the state”.

I guess you perception of Snowden may boil down to whether you think the resulting transparency of / dialogue on intelligence-gather would have taken place had Snowden or another whistle-blower handed sensitive information over to official ombudsman channels (the lack of official ombudsman channels in the U.S. is also glaring problem that should receive more attention in this wider debate).

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This brings me to a larger, more philosophical point about the “social contract” and accountability in an effective democracy such as the U.S.A. At what point did the trust between the government and the people erode so drastically? 

Don’t get me wrong, I am strongly outspoken about the costs to society of partisan gridlock in Washington and the importance of good governance worldwide for global policy coherence, particularly in the context of a globalized world and the Great Recession. But there is a difference between being frustrated with partisan politics (which by the way is not new, although it is currently very bad), and being mistrusting of the governments actions and intentions. Sure NSA intelligence gathering could be used for nefarious purposes, since when is this the yard-stick by which we measure our governments policies? The U.S. could blow up the world 10x over with its nuclear arsenal, but this is not the purpose of our nuclear weapons, so we do not constantly question the existence of nuclear weapons (although denuclearization is a long term normative goal). Judge the program based on what it does (nuclear weapons deter nuclear warfare in less accountable nations), not based on how it could be used  in the worst case scenario. 

In a democracy, there is a strong element of personal accountability for how things in the country end up. If you do not trust our elected officials get your ass up and vote for people who have a record of transparency, accountability, and open-mindedness, get involved in local politics; there are people around the world who would (and currently are) risking their lives for the political rights we take for granted.