The law allows the NSA to examine such messages and share them with other agencies if it determines that the information contained is evidence of a crime, conveys a serious threat or is necessary to understand foreign intelligence.
The threshold for scrutinizing other data not regarded as content but still potentially revealing is lower than it is for the contents of communications. A 2009 report by the NSA inspector general and obtained by The Washington Post indicates that the agency for years examined metadata on e-mails flowing into and out of the United States, including “the sender and recipient e-mail addresses.”
President George W. Bush at times engaged in similarly careful phrasing to defend surveillance programs in the years after the Sept. 11, 2001, attacks. In 2004, while calling for renewal of the Patriot Act, Bush sought to assuage critics by saying “the government can’t move on wiretaps or roving wiretaps without getting a court order.”
At the time, it had not yet been publicly disclosed that Bush had secretly authorized NSA surveillance of communications between U.S. residents and contacts overseas while bypassing the Foreign Intelligence Surveillance Court.
When the wiretapping operation was exposed in the news media two years later, Bush defended it as a program “that listens to a few numbers, called from outside of the United States, and of known al-Qaeda or affiliate people.” Subsequent revelations have made clear that the scope was far greater than his words would suggest.
News accounts of the NSA programs have also contained inaccuracies, in some cases because of the source materials. Classified NSA slides that were published by The Post indicated that the NSA was able to tap directly into the servers of Google, Microsoft, Apple and other technology companies. The companies denied that they allowed direct access to their equipment, although they did not dispute that they cooperated with the NSA.
Current and former U.S. officials have defended the programs, and some have called for greater transparency as a way of allaying concerns.
“I’m convinced, the more the American people know exactly what it is we are doing in this balance between privacy and security — the more they know, the more comfortable they will feel,” Michael V. Hayden, former director of the NSA and CIA, told “Face the Nation” on Sunday. “Frankly, I think we ought to be doing a bit more to explain what it is we’re doing, why, and the very tight safeguards under which we’re operating.”
For now, the crumbling secrecy surrounding the programs has underscored the extent to which obscuring their dimensions had served government interests beyond the importance of the intelligence they produced.