NSA has broad leeway, files show

Agency can gather information on all but 4 countries

Tuesday, July 1, 2014

WASHINGTON -- Virtually no foreign government is off-limits for the National Security Agency, which has been authorized to intercept information from individuals "concerning" all but four countries on Earth, according to top-secret documents.

The U.S. has long had broad no-spying arrangements with those four countries -- Britain, Canada, Australia and New Zealand -- in a group known collectively with the U.S. as the Five Eyes. But a classified 2010 legal certification and other documents indicate the agency has been given a far more elastic authority than previously known, one that allows it to intercept through U.S. companies not just the communications of its overseas targets, but any communications about its targets as well.

The certification -- approved by the Foreign Intelligence Surveillance Court and included in a set of documents leaked by former National Security Agency contractor Edward Snowden -- lists 193 countries that would be of valid interest for U.S. intelligence. The certification also permitted the agency to gather intelligence about entities such as the World Bank, International Monetary Fund, European Union and International Atomic Energy Agency, among others.

The spy agency is not necessarily targeting all the countries or organizations identified in the certification, affidavits and an accompanying exhibit; it has only been given authority to do so. Still, the privacy implications are far-reaching, civil liberties advocates say, because of the wide spectrum of people who might be engaged in communication about foreign governments and entities and whose communications might be of interest to the United States.

"These documents show both the potential scope of the government's surveillance activities and the exceedingly modest role the court plays in overseeing them," said Jameel Jaffer, deputy legal director for the American Civil Liberties Union.

Agency officials, who would not comment on the certification or acknowledge its authenticity, stressed the constraints placed on foreign intelligence gathering. The collection must relate to a foreign intelligence requirement -- there are thousands -- set for the intelligence agencies by the president, director of national intelligence and various departments through the so-called National Intelligence Priorities Framework.

Furthermore, former government officials said, it is prudent for the certification to list every country -- even those whose affairs do not seem to immediately bear on U.S. national security interests or foreign policy.

"It's not impossible to imagine a humanitarian crisis in a country that's friendly to the United States, where the military might be expected on a moment's notice to go in and evacuate all Americans," said a former senior defense official, who spoke on condition of anonymity.

"If that certification did not list the country," the National Security Agency could not gather intelligence under the law, the former official said.

The documents shed light on a little-understood process that is central to one of the spy agency's most significant surveillance programs: collection of the emails and phone calls of foreign targets under Section 702 of the 2008 FISA Amendments Act.

The foreign government certification, signed by the attorney general and director of national intelligence, is one of three approved annually by the Foreign Intelligence Surveillance Court. The other two relate to counterterrorism and counterproliferation, according to the documents and former officials.

Under the Section 702 program, the surveillance court also approves rules for surveillance targeting and for protecting Americans' privacy. The certifications, together with the National Intelligence Priorities Framework, serve as the basis for targeting a person or an entity.

An affidavit in support of the 2010 foreign government certification stated that the spy agency believes foreigners who will be targeted for collection "possess, are expected to receive and/or are likely to communicate foreign intelligence information concerning these foreign powers."

Even the no-spy agreements with the Five Eye countries have exceptions. The agency's principal targeting system automatically filters out phone calls from Britain, Canada, Australia and New Zealand. But it does not do so for their 28 sovereign territories, such as the British Virgin Islands.

A National Security Agency policy bulletin from April 2013 said filtering out those country codes would slow the system down.

"Intelligence requirements, whether satisfied through human sources or electronic surveillance, involve information that may touch on almost every foreign country," said Timothy Edgar, former privacy officer at the Office of Director of National Intelligence and now a visiting fellow at Brown University's Watson Institute for International Affairs.

A spokesman for the National Security Agency, Vanee Vines, said the agency may only target foreigners "reasonably believed to be outside the United States."

A Section on 07/01/2014