NSA Voluntarily Ends Collection of Americans’ Messages Referencing Foreign Targets

Posted on May 1, 2017

According to a new report by the New York Times, the NSA has voluntarily ended a mass surveillance program which collected Americans’ email or SMS messages which reference an individual who is the target of another program. While the agency continues to monitor the communications of individuals suspected of threatening national security and those with whom they communicate, whether US citizens or foreign nationals, the NSA has elected to terminate a program which captured US citizens’ communications with foreigners which merely mentioned such individuals to more faithfully comply with Foreign Intelligence Surveillance Court rulings regulating this type of search.

In response to concerns that NSA collection activities excessively swept up Americans’ messages, the Foreign Intelligence Surveillance Court (or FISA court) ruled in 2011 that it had to either impose limits on analysts’ ability to access the incidentally acquired information or shut the program down entirely. Initially, the NSA responded by stipulating that such information had to be stored in a separate database which would require higher levels of authorization to access. However, a review of the program found that analysts were routinely accessing the database without proper authorization, prompting the NSA to shutter the program this week to comply with the 2011 FISA court order.

While this represents a significant advance in the protection of Americans’ privacy, comprehensive oversight from Congress is still needed to ensure that this program or a refined replacement which accommodates the FISA court ruling is not implemented later. Some former government officials, such as former State Department official John Tye, believe that the NSA already has the authority under the Reagan-era Executive Order 12333 to initiate a similar content collection program as a replacement, if they have not already done so as a safety net to ensure continued operation of vital programs. Crucially, programs sanctioned under the order are not subject to oversight by the FISA court, allowing programs like the now-defunct content collection operation to evade rulings which would otherwise hinder or nullify them.

Only reform enacted by Congress can put binding restrictions on the NSA’s activity. As the FISA Amendments Act will expire at the end of this year if it is not renewed, Congress will have the chance to debate and include meaningful reform in any reauthorization of the FISA Amendments Act and, by extension, the programs it is responsible for overseeing.

You can find the full story from The New York Times here.