NSA memo eyed 4th Amendment

The National Security Agency pushed for the government to “rethink” the Fourth Amendment when it argued in a classified memo that it needed new authorities and capabilities for the information age.

The 2001 memo, later declassified and posted online by George Washington University’s National Security Archive, makes a case to the incoming George W. Bush administration that the NSA needs new authorities and technology to adapt to the Internet era.


In one key paragraph, NSA wrote that its new phase meant the U.S. must reevaluate its approach toward signals intelligence, or “SIGINT,” and the Constitution’s Fourth Amendment protections against unreasonable search and seizure.

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“The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today,” it wrote. “The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born in an earlier electronic surveillance environment.”

Americans learned about one upshot of NSA’s philosophy this week when Washington acknowledged two of its subsequent surveillance programs: One that tracks the phone records of millions of Americans and one that accesses the servers of several major Internet companies, including Facebook, Google and Apple. The revelations were first reported by Britain’s Guardian newspaper and the Washington Post.

NSA’s memo continued: “Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws. But senior leadership must understand that today’s and tomorrow’s mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as the targeted communications of adversaries.”

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The quotes around “protected” appear in the original document.

NSA’s phone-tracking program and its PRISM Internet monitoring program both suggest U.S. officials continue to take to heart NSA’s “rethought” interpretation of the Fourth Amendment. Rather than tracking only Americans suspected of crimes or involved with terrorism, since 2006 NSA has collected the records of everyone, then returned to a secret federal court to get authorization to target specific individuals more closely.

President Barack Obama defended the surveillance on Friday on his visit to California to meet with Chinese President Xi Jinping

“You can’t have 100 percent security and also then have 100 percent privacy and 0 percent inconvenience,” he said. “We’re going to have to make some choices as a country. What you can say is, in evaluating these programs, they make a difference to anticipate and prevent possible terrorist activity.”

Obama said there was robust oversight over NSA’s monitoring — Congress knows about the surveillance, as do the judges on the secret Foreign Intelligence Surveillance Court. If critics don’t trust all three branches of the government to check and balance each other, Obama said, “we’re going to have some problems here.”

Earlier, Director of National Intelligence James Clapper also defended NSA’s surveillance activities in a rare statement late Thursday.

“Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats.”

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The NSA has been a central player in U.S. cyber strategy since at least 1997, according to a separate declassified memo obtained by the National Security Archive. That document describes how the administration of President Bill Clinton assigned NSA with “Computer Network Attack” — “a natural companion to NSA’s exploit and protect functions,” the memo said.

But it wasn’t until later, after the infusion of billions of dollars and the new legal authorities that followed the Sept. 11 terrorist attacks, that NSA’s capabilities grew to the scale revealed this week. Beforehand, the agency warned in its 2001 memo that it needed to “build a modern information infrastructure that … mirrors the technology and capabilities available on the global digital communications network.”

“The need for action was underscored in January 2000 when NSA experienced a catastrophic network outage for 3 ½ days,” the memo said. “The outage greatly reduced the signals intelligence information available to national decision makers and military commanders. As one result, the president’s daily briefing — 60 percent of which is normally based on SIGINT — was reduced to a small portion of its typical size.”

NSA, it said elsewhere, “must live on the network.”