text: Photo: Charles Dharapak 
   
   In response to Edward Snowden’s leaks, the government has tried to calm Americans by declaring that when it comes to online communications, “only non-U.S. persons outside the U.S. are targeted.” The rest of the world still found that information pretty unsettling, and now the New York Times reports that it’s not exactly true for Americans anyway. The NSA is sifting through most e-mail and text communications in and out of the country, and their search isn’t limited to Americans who deal directly with foreign targets. According to a document leaked by Snowden, the NSA is also looking for “communications about the target that are not to or from the target.” If you mention a terrorist’s e-mail address or phone number to a friend overseas, the NSA intends to find out. 
   
   The line was included in a list of rules about how the NSA can apply a 2008 law in which Congress approved warrantless eavesdropping, as long as the “target” was a foreigner abroad, and it was the only rule marked “top secret.” The document was posted online in June, but the line was mostly overlooked at the time. 
   
   The Times reports that the NSA conducts surveillance on communications that cross the border by temporarily copying the data, then having a computer search for keywords that flag content for humans to examine. One senior intelligence officer argued that the process doesn’t amount to bulk data collection, since the search process takes seconds and the data isn’t stored. The official wouldn’t comment on how much data is processed, but computer scientists said that due to the way the messages are transmitted, the government would have to collect and reconstruct nearly all information crossing the border to make sense of it. 
   
   Timothy Edgar, a former intelligence official in the Bush and Obama administrations, said there’s also “an ambiguity in the law about what it means to ‘target’ someone.” The government isn’t allowed to target Americans, but the conversation is fair game as long as one of the participants is a noncitizen outside the U.S. Even if the agency is examining communication from the American, technically the foreigner is the target. And thus, the president feels more comfortable declaring, “We don’t have domestic spying,” on the Tonight Show. ||||| Share 
   
   Newly released documents confirm what critics have long suspected—that the National Security Agency, a component of the Defense Department, is engaged in unconstitutional surveillance of Americans' communications, including their telephone calls and emails. The documents show that the NSA is conducting sweeping surveillance of Americans' international communications, that it is acquiring many purely domestic communications as well, and that the rules that supposedly protect Americans' privacy are weak and riddled with exceptions. 
   
   The FISA Amendment Act, signed into law by President Bush in 2008, expanded the government's authority to monitor Americans' electronic communications. Critics of the law feared the NSA would use the law to conduct broad surveillance of Americans' international communications and, in the process, capture an unknown quantity of purely domestic communications. Government officials contended that the law authorized surveillance of foreign nationals outside the United States—not of Americans—and that it included robust safeguards to protect Americans' privacy. Last year, in a successful effort to derail a constitutional challenge to the law, the Obama administration made these same claims to the U.S. Supreme Court. 
   
   Now The Guardian has published two previously secret documents that show how the FISA Amendments Act is being implemented. One document sets out the government's "targeting procedures"—the procedures it uses to determine whether it has the authority to acquire communications in the first place. The other sets out the government's "minimization procedures"—the procedures that govern the retention, analysis, and dissemination of the communications it acquires. Both documents—the "Procedures"—have apparently been endorsed by the Foreign Intelligence Surveillance Court, which oversees government surveillance in some national security cases. 
   
   The Procedures are complex, but at least some of their flaws are clear. 
   
   1. The Procedures permit the NSA to monitor Americans' international communications in the course of surveillance targeted at foreigners abroad. 
   
   The NSA "is not listening to Americans' phone calls or monitoring their emails," the Chairman of the House Intelligence Committee recently said, and many other government officials, including the president himself, have made similar assurances. But these statements are not true. While the FISA Amendments Act authorizes the government to target foreigners abroad, not Americans, it permits the government to collect Americans' communications with those foreign targets. Indeed, in advocating for the Act, government officials made clear that these "one-end-domestic" communications were the ones of most interest to them. The Procedures contemplate not only that the NSA will acquire Americans' international communications but that it will retain them and possibly disseminate them to other U.S. government agencies and foreign governments. Americans' communications that contain "foreign intelligence information" or evidence of a crime can be retained forever, and even communications that don't can be retained for as long as five years. Despite government officials' claims to the contrary, the NSA is building a growing database of Americans' international telephone calls and emails. 
   
   2. The Procedures allow the surveillance of Americans by failing to ensure that the NSA's surveillance targets are in fact foreigners outside the United States. 
   
   The Act is predicated on the theory that foreigners abroad have no right to privacy—or, at any rate, no right that the United States should respect. Because they have no right to privacy, the U.S. government sees no bar to the collection of their communications, including their communications with Americans. But even if one accepts the government's premise, the Procedures fail to ensure that the NSA's surveillance targets are in fact foreigners outside the United States. This is because the Procedures permit the NSA to presume that prospective surveillance targets are foreigners outside the United States absent specific information to the contrary—and to presume therefore that they are fair game for warrantless surveillance. 
   
   3. The Procedures permit the government to conduct surveillance that has no real connection to the government's foreign intelligence interests. 
   
   One of the fundamental problems with the Act is that it permits the government to conduct surveillance without probable cause or individualized suspicion. It permits the government to monitor people who aren't even thought to be doing anything wrong, and to do so without particularized warrants or meaningful review by impartial judges. Government officials have placed heavy emphasis on the fact that the Act allows the government to conduct surveillance only if one of its purposes is to gather "foreign intelligence information." That term, though, is defined very broadly to include not only information about terrorism but also information about intelligence activities, the national defense, and even "the foreign affairs of the United States." The Procedures weaken the limitation further. Among the things the NSA examines to determine whether a particular email address or phone number will be used to exchange foreign intelligence information is whether it has been used in the past to communicate with foreigners. Another is whether it is listed in a foreigner's address book. In other words, the NSA seems to equate a propensity to communicate with foreigners with a propensity to communicate foreign intelligence information. The effect is to bring virtually every international communication within the reach of the NSA's surveillance. 
   
   4. The Procedures permit the NSA to collect international communications, including Americans' international communications, in bulk. 
   
   On its face, the Act permits the NSA to conduct dragnet surveillance, not just surveillance of specific individuals. Officials who advocated for the Act made clear that this was one of its principal purposes, and unsurprisingly, the Procedures give effect to that design. While they require the government to identify a "target" outside the country, once the target has been identified the Procedures permit the NSA to sweep up the communications of any foreigner who may be communicating "about" the target. The Procedures contemplate that the NSA will do this by "employ[ing] an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas," by "target[ing] Internet links that terminate in a foreign country," or by identifying "the country code of the telephone number." However the NSA does it, the result is the same: millions of communications may be swept up, Americans' international communications among them. 
   
   5. The Procedures allow the NSA to retain even purely domestic communications. 
   
   Given the permissive standards the NSA uses to determine whether prospective surveillance targets are foreigners abroad, errors are inevitable. Some of the communications the NSA collects under the Act, then, will be purely domestic. (Notably, a 2009 New York Times article discusses an episode in which the NSA used the Act to engage in "significant and systemic" overcollection of such domestic communications.) The Act should require the NSA to purge these communications from its databases, but it does not. The Procedures allow the government to keep and analyze even purely domestic communications if they contain significant foreign intelligence information, evidence of a crime, or encrypted information. Again, foreign intelligence information is defined exceedingly broadly. The result is that the NSA is steadily building a database of Americans' purely domestic calls and emails. 
   
   6. The Procedures allow the government to collect and retain communications protected by the attorney–client privilege. 
   
   The Procedures expressly contemplate that the NSA will collect attorney–client communications. In general, these communications receive no special protection—they can be acquired, retained, and disseminated like any other. Thus, if the NSA acquires the communications of lawyers representing individuals who have been charged before the military commissions at Guantanamo, nothing in the Procedures would seem to prohibit the NSA from sharing the communications with military prosecutors. The Procedures include a more restrictive rule for communications between attorneys and their clients who have been criminally indicted in the United States—the NSA may not share these communications with prosecutors. Even those communications, however, may be retained to the extent that they include foreign intelligence information. 
   
   7. The Procedures contemplate that the NSA will maintain "knowledge databases" containing sensitive information about Americans. 
   
   To determine whether a target is a foreigner abroad, the Procedures contemplate that the NSA will consult various NSA databases containing information collected by it and other agencies through signals intelligence, human intelligence, law enforcement, and other means. These databases—referred to as "NSA content repositories" and "knowledge databases"—apparently house internet data, including metadata that reveals online activities, as well as telephone numbers and email addresses that the agency has reason to believe are being used by U.S. persons. The Procedures' reference to "Home Location Registers," which receive updates whenever a phone "moves into a new service area," suggests that the NSA also collects some form of location information about millions of Americans' cellphones. The Procedures do not say what limits apply to these databases or what safeguards, if any, are in place to protect Americans' constitutional rights. 
   
   8. The Procedures allow the NSA to retain encrypted communications indefinitely. 
   
   The Procedures permit the NSA to retain, forever, all communications—even purely domestic ones—that are encrypted. The use of encryption to protect data is a routine and sometimes legally required practice by financial organizations, health care providers, and real-time communications services (like Skype and Apple's FaceTime). Accordingly, the Procedures permit the NSA to retain huge volumes of Americans' most sensitive information. ||||| WASHINGTON — 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. 
   
   Asked to comment, Judith A. Emmel, an N.S.A. spokeswoman, did not directly address surveillance of cross-border communications. But she said the agency’s activities were lawful and intended to gather intelligence not about Americans but about “foreign powers and their agents, foreign organizations, foreign persons or international terrorists.” 
   
   “In carrying out its signals intelligence mission, N.S.A. collects only what it is explicitly authorized to collect,” she said. “Moreover, the agency’s activities are deployed only in response to requirements for information to protect the country and its interests.” 
   
   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. 
   
   Computer scientists said that it would be difficult to systematically search the contents of the communications without first gathering nearly all cross-border text-based data; fiber-optic networks work by breaking messages into tiny packets that flow at the speed of light over different pathways to their shared destination, so they would need to be captured and reassembled. 
   
   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.
target: – The NSA is poring over pretty much all emails and texts sent across the border by Americans to look for information that might raise red flags, the New York Times reports. The revelation means that the NSA's surveillance of Americans is broader than was previously known: It's not just direct communication between an American and foreign targets that will be intercepted; it's any email or text about a such a target. As New York puts it, "If you mention a terrorist's email address or phone number to a friend overseas, the NSA intends to find out." The NSA temporarily copies most cross-border communications, the Times notes, and scans them. The expanded surveillance was mentioned, but largely overlooked, in information released by Edward Snowden in June. The ACLU calls it "dragnet surveillance" that will cause ordinary people to hesitate before discussing sensitive topics or visiting controversial websites for fear they will be monitored. “Individually, these hesitations might appear to be inconsequential, but the accumulation of them over time will change citizens’ relationship to one another and to the government.” A former NSA general counsel cites an example of how it could be useful: Say intel officials knew al-Qaeda was using a particular phone number for a specific plot. “If someone is sending that number out, chances are they are on the inside of the plot, and I want to find the people who are on the inside of the plot."