Skip to main content

NSA Email Collection Violated 4th Amendment: FISA Court

By Betty Wang, JD on August 23, 2013 | Last updated on March 21, 2019

According to formerly top-secret court opinions declassified this week, the National Security Agency has collected thousands of Americans' emails in violation of the Fourth Amendment.

The NSA on Wednesday released three secret U.S. court opinions that revealed how, over the course of three years, agents collected as many as 56,000 emails and other domestic communications between Americans who had no connection to terrorism, The Washington Post reports.

The Fourth Amendment guarantees that all U.S. citizens are free from unreasonable searches and seizures, absent a warrant issued with probable cause. How did the NSA violate that guarantee, according to the court?

Looking for 'Red Flags'

The NSA carried out its original program in 2008 to target emails of foreign terrorist suspects. It consisted of combing through emails for particular words that would set off "red flags," like "bomb."

But as part of the program, agents unintentionally collected email communications between Americans, which can be seen as an unreasonable search without probable cause.

The opinions by the secret court, convened under the Foreign Intelligence Surveillance Act (FISA), are heavily redacted, the Post reports. But they show the unintentional NSA email collections netted more than 50,000 email messages per year between 2008 and 2011.

Is There a Violation? Some Say No, Courts Say Yes

Some lawmakers are reacting to the declassified FISA court rulings. According to the Post, Sen. Ron Wyden, D-Oregon, who's challenged NSA surveillance in the past, said:

The FISA court has noted that this collection violates the spirit of the law, but the government has failed to address this concern in the two years since this ruling was issued. This ruling makes it clear that FISA Section 702, as written, is insufficient to adequately protect the civil liberties and privacy rights of law-abiding Americans and should be reformed.

According to a press release from the director of National Intelligence, FISA Section 702 is "a provision that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States."

However, a White House spokesman insisted the program is specifically intended to only gather foreign intelligence, CBS News reports. The surveillance of Americans is merely incidental, he claimed; records of unintentional email collections show the NSA is being held to account for its actions.

While the NSA is allowed to store metadata (such as the address, phone number, and duration) for up to five years, the content of actual emails between American citizens was a clear violation of the Fourth Amendment, the FISA court ruled.

Related Resources:

Copied to clipboard