Three months later, on July 15, the secret surveillance court allowed the NSA to resume bulk collection under the court’s own authority. The opinion, which remains highly classified, was based on a provision of electronic surveillance law, known as “pen register, trap and trace,” that was written to allow law enforcement officers to obtain the phone numbers of incoming and outgoing calls from a single telephone line.
When the NSA aims for foreign targets whose communications cross U.S. infrastructure, it expects to sweep in some American content “incidentally” or “inadvertently,” which are terms of art in regulations governing the NSA. Contact chaining, because it extends to the contacts of contacts of targets, inevitably collects even more American data.
Current NSA director Keith B. Alexander and Director of National Intelligence James R. Clapper Jr. have resolutely refused to offer an estimate of the number of Americans whose calls or e-mails have thus made their way into content databases such as NUCLEON.
The agency and its advocates maintain that its protection of that data is subject to rigorous controls and oversight by Congress and courts. For the public, it comes down to a question of unverifiable trust.
“The constraints that I operate under are much more remarkable than the powers that I enjoy,” said the senior intelligence official who declined to be named.
When asked why the NSA could not release an unclassified copy of its “minimization procedures,” which are supposed to strip accidentally collected records of their identifying details, the official suggested a reporter submit a freedom-of-information request.
As for bulk collection of Internet metadata, the question that triggered the crisis of 2004, another official said the NSA is no longer doing it. When pressed on that question, he said he was speaking only of collections under authority of the surveillance court.
“I’m not going to say we’re not collecting any Internet metadata,” he added. “We’re not using this program and these kinds of accesses to collect Internet metadata in bulk.”
Julie Tate and Ellen Nakashima contributed to this report.