NSA Secret Warrantless Spying Rules Revealed

Tyler Durden's picture

The Guardian has done it once again, this time presenting two July 2009 documents signed by none other than Eric Holder which lay out under what conditions the NSA is allowed to make use of information "inadvertently" collected from domestic US communications without a warrant. The documents detail the procedures the NSA is required to follow to target "non-US persons" under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance. "The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used."

To the NSA's credit, the disclosure shows that data collected on US persons under the foreign intelligence authority must be destroyed, and the extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection. The problems are when one sees the cornucopia of FISA court-approved loopholes that can be exploited. Among them:

  • Keep data that could potentially contain details of US persons for up to five years;
  • Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
  • Preserve "foreign intelligence information" contained within attorney-client communications;
  • Access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

As the Guardian's Greenwald notes, "The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants." And more importantly, "The documents also show that discretion as to who is actually targeted under the NSA's foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors – though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis."

Where it gets more interesting is the disclosure about bulk data collection:

Section 702 of the Fisa Amendments Act (FAA), which was renewed for five years last December, is the authority under which the NSA is allowed to collect large-scale data, including foreign communications and also communications between the US and other countries, provided the target is overseas.


FAA warrants are issued by the Fisa court for up to 12 months at a time, and authorise the collection of bulk information – some of which can include communications of US citizens, or people inside the US. To intentionally target either of those groups requires an individual warrant.


One such warrant seen by the Guardian shows that they do not contain detailed legal rulings or explanation. Instead, the one-paragraph order, signed by a Fisa court judge in 2010, declares that the procedures submitted by the attorney general on behalf of the NSA are consistent with US law and the fourth amendment.


Those procedures state that the "NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person".


It includes information that the NSA analyst uses to make this determination - including IP addresses, statements made by the potential target, and other information in the NSA databases, which can include public information and data collected by other agencies.


Where the NSA has no specific information on a person's location, analysts are free to presume they are overseas, the document continues.

And it is here that the biggest NSA loophole emerges: "In the absence of specific information regarding whether a target is a United States person, a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person."

Of course, the "specific information" could be just one google search away, which the analyst determines is irrelevant, and thus no information - specific or otherwise - is available to prevent the cascading series of steps that allow further inquiry into the US citizen's life. Among these are the following:

If it later appears that a target is in fact located in the US, analysts are permitted to look at the content of messages, or listen to phone calls, to establish if this is indeed the case.


Referring to steps taken to prevent intentional collection of telephone content of those inside the US, the document states: "NSA analysts may analyze content for indications that a foreign target has entered or intends to enter the United States. Such content analysis will be conducted according to analytic and intelligence requirements and priorities."


Details set out in the "minimization procedures", regularly referred to in House and Senate hearings, as well as public statements in recent weeks, also raise questions as to the extent of monitoring of US citizens and residents.


NSA minimization procedures signed by Holder in 2009 set out that once a target is confirmed to be within the US, interception must stop immediately. However, these circumstances do not apply to large-scale data where the NSA claims it is unable to filter US communications from non-US ones.


The NSA is empowered to retain data for up to five years and the policy states "communications which may be retained include electronic communications acquired because of limitations on the NSA's ability to filter communications".


Even if upon examination a communication is found to be domestic – entirely within the US – the NSA can appeal to its director to keep what it has found if it contains "significant foreign intelligence information", "evidence of a crime", "technical data base information" (such as encrypted communications), or "information pertaining to a threat of serious harm to life or property".

In other words: the determination is purely subjective and entirely in the eye of the beholder, or in this case in the brain of the Holder's analyst. Such as this:

A transcript of a 2008 briefing on FAA from the NSA's general counsel sets out how much discretion NSA analysts possess when it comes to the specifics of targeting, and making decisions on who they believe is a non-US person. Referring to a situation where there has been a suggestion a target is within the US.


"Once again, the standard here is a reasonable belief that your target is outside the United States. What does that mean when you get information that might lead you to believe the contrary? It means you can't ignore it. You can't turn a blind eye to somebody saying: 'Hey, I think so and so is in the United States.' You can't ignore that. Does it mean you have to completely turn off collection the minute you hear that? No, it means you have to do some sort of investigation: 'Is that guy right? Is my target here?" he says.


"But, if everything else you have says 'no' (he talked yesterday, I saw him on TV yesterday, even, depending on the target, he was in Baghdad) you can still continue targeting but you have to keep that in mind. You can't put it aside. You have to investigate it and, once again, with that new information in mind, what is your reasonable belief about your target's location?"

"Keep in mind" that you are breaking the constitution? Just kidding: after all they are just "protecting" everyone.

The final step in chain of events:

Once armed with these general orders, the NSA is empowered to compel telephone and internet companies to turn over to it the communications of any individual identified by the NSA. The Fisa court plays no role in the selection of those individuals, nor does it monitor who is selected by the NSA.

And that is how, contrary to the administration's lies, virtually anyone can be an NSA target, and absolutely every single American can be spied on without limitation.

Finally, the Eric Holder signed documents can be found here and here for readers' perusal.

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ebworthen's picture

No surprise; the Police in my town kick in people's doors without warrants all the time.

Even if they get the wrong house the homeowner is left to replace the door and locks.

Police State!  STASI USSA!

Joe Sixpack's picture

My comment on the Guardian:


"I don't know how you do this, but we need to trim the federal government to about 1/3 its current size. Voting for Ron Paul would have been a decent start. I know most of you will not be able to even consider that, and that is why this will not stop. Brainwashing can take a long time to reverse."

ghandi's picture

Shit. They don't need to get you at your home.

I know a good friend who was told he was being pinched by [insert agency] for looking at "a classified doc." All while camping with an frienemy/agent.

His response: "if its online its not classified."

phoolish's picture

Actually, that is a malware program.

max2205's picture

2009.  That was a good year

espirit's picture

National Stuttering Association (NSA)?

Go Tribe's picture

Better check your brake lines in the morning.

Henry Hub's picture

It looks like something the journalist Micheal Hasting forgot to do. He a was obviously murdered by the secret police (CIA or FBI).


LetThemEatRand's picture

That's just what they want you to believe so you don't go doing anything crazy like investigate them.  And there's the fact that it is clearly true. Another conspiracy theory that will be shown to be conspiracy fact, eventually.

ZerOhead's picture

Let's see...

He is in contact with a Wikileaks author about an hour or two before about a story on the CIA and tells him that he is being watched by the FBI and the next thing you know he is racing out of control at 100mph  (in a conscious or unconscious condition?) through intersections at a high rate of speed (no brakes?) and eventually hits a tree.

Either he had a death wish, was running from something, or somebody tampered with his brakes/accelerator/steering in  a deliberate attempt to kill him.

On the other hand it is perversely yet slightly reassuring to see that the CIA and FBI can finally work together unlike that 9/11 fiasco of theirs.... and the NSA with it's billion dollar budgets has most helpfully recorded the content of all of his emails and calls for us so we are certain that we will find the killers!

And NO... He was NOT driving a Toyota.

Ignatius's picture



1)  wire the car

2)  make threats

3)  pull alongside car and flash a gun

4)  Hastings takes off like a banshee

5)  push the button/boom & crash


Creates plausible deniability by having him speeding on the street.

If they don't test for explosives then they don't wanna know.

AlaricBalth's picture

The tragic death of Mr. Hasting was a form of communication practiced in black ops for years. It was a message being transmitted from TPTB to the press and any potential whistleblowers. The said message was clear and concise, BACK OFF

Cutting the brakes would be an amateur's move. The break light would activate upon starting the car. The optimal method would be to puncture a nail sized hole in the lines going to the front and back brakes. When the brake pedal is applied a few times, the pressurized hydraulic fluid would escape out the holes, and before long, no brakes.

Edit: please don't try this on your ex's car and then point a finger at me. I have enough problems! ;-)

Lost Word's picture

There are conspiracy theories that Princess Diana's Mercedes engine and steering drive train control computer was rigged with remote control throttle and steering, by British secret agents, in the fatal Paris tunnel pillar car crash in 1997.

Michael Hasting was driving a Mercedes; speeding out of control, and struck a tree; similar to Diana's speeding out of control Mercedes, which struck a tunnel pillar.



freewolf7's picture

Fuck you, NSA.
Sorry, that was inadvertent.

Atomizer's picture

No worries, you've just have made Eric Holder & Valerie Jarrett's SHITLIST. /Hahahahahaahahaha

freewolf7's picture

We're all on the list anyway.

Atomizer's picture

Yep, but who cares when the system is going to reset..

DaveyJones's picture

"The documents also show that discretion as to who is actually targeted under the NSA's foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors – though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis"

shit, I knew law school was a waste

blindfaith's picture



Well now, goes to show you...education ain't cheap.

Seems the street guys had this figured from the get-go. yaaaaaa, as Jessie would say.

blindfaith's picture




details...all those details...I was going to write something, but Google gust flased a bnch of tits on the left scrrrn and i can' member

ooouuuuuu momma

Google, the PORN KINGS

duo's picture

so if I go to Europe and my wife emails me, does that meain I'm a foreigner and therefore the 4th Amendment doesn't apply?  Slippery slope here.

Everyman's picture

There is no rules like "no rules"!

XitSam's picture

"information on criminal activity"

With the average American committing Three Felonies a Day, that's everything then.

Henry Hub's picture

As Lavrentiy Beria (Stalin's secret police chief) said "Show me the man and I'll show you the crime".

Wile-E-Coyote's picture

Fuck you NSA............... you won't get us all, then we come for you!!

Muppet Pimp's picture

We need to look into the data collected by cable boxes.  Some have cameras and voice detection.  Curiously, many of these products are Samsung, and while not making any claims, it has long been the policy of North Korea to have listening devices in the homes of their people.  Also, the NSA can exchange information with other governments so, the foreign intelligence service can do the spying on Americans and american spying on them and they can swap info legally I believe.  Rabbit hole runs deep muppets.

Spanky's picture


Just turn the fucker off.

Spanky's picture

Please? -1? 

To whom it may concern: You made my point.

WillyGroper's picture

Put a foam rubber casing around it. I have a 1 inch thick that my cell resides in when the occasion arises.

Maybe a little reverse engineering. It would really be nice to transmit a freq that would make their ears bleed. 

Whalley World's picture

and this is fan f'n tastic!!!




takes a while to load, wonder why?

WAMO556's picture


I am not AARP fan, but that was good stylin.

Just saying.

Lost Word's picture

Brian Williams of NBC calls the NSA spying as "Data Mining".

As usual for the Lying Treasonous Establishment news media.

ebworthen's picture

I suppose that would make warrantless door kicking "information gathering".

freewolf7's picture

There was "probable cause".
Made up, like everything else,
of course.

blindfaith's picture

he is another paid off slug.  why???? would you pay him any attention?  Now, that is THE bigger question.

He is such a snot, I hope he doesn't move into my neighborhood...he would be a dead fish out of water.

Seize Mars's picture

Eric Fucking Holder.

I'll bet - nah, I'll go ALL IN - that he ends his illustrious career behind bars.

Debt Slave's picture

Call me cynical, but based upon what I have seen, I am betting the opposite.

Spanky's picture

I'll take your bet, but only if I can manipulate the odds. Gotta put Bernays to work ya'll.