This won’t come as much of a
shocker, but the federal government has, in a sideways fashion,
admitted that electronic snooping conducted under the controversial
Foreign Intelligence Surveillance Act Amendments Act of 2008
(federal motto: roll-off-the-tongue is not our style) has sometimes
violated the Fourth Amendment. I say sideways, because the news
comes courtesy of a leaked letter to Senator Ron Wyden, from the
Office of the Director of National Intelligence, authorizing the
privacy-championing
legislator to make statements to that effect. And yes, you
should find it creepy that an elected lawmaker needs a professional
spook’s permission to tell us that the government has screwed us
over.

In the letter (PDF) dated July 20, 2012, Sen. Wyden is
authorized to make the following statements:

• A recently unclassified report noted that the Foreign
  Intelligence Surveillance Court has repeatedly held that collection
  carried out pursuant to the FISA Section 702 minimization
  procedures used by the government is reasonable under the Fourth
  Amendment.
• It is also true that on at least one occasion the Foreign
  Intelligence Surveillance Court held that some collection carried
  out pursuant to the Section 702 minimization procedures used by the
  government was unreasonable under the Fourth Amendment.
• I believe that the government’s implementation of Section 702
  of FISA has sometimes circumvented the spirit of the law, and on at
  least one occasion the FISA Court has reached this same
  conclusion.

“Minimization procedures” refer to efforts made to keep the
intrusiveness of a wiretap to a minimum, so that only relevant
information is gathered. But the FISC has admitted
that “large amounts of information are collected by automatic
recording to be minimized after the fact.”

Note that, while the law in question refers to “foreign
intelligence,” it explicitly applies to communications where at
least one party to the call is “reasonably believed” to be outside
the United States. The other can be within the U.S. Senators Ron
Wyden and Mark Udall noted some concerns in a minority view
attached to the Senate
Committee on Intelligence report regarding extending the
government’s surveillance power, which is due to sunset:

[S]ection 702 currently contains a loophole that could be used
to circumvent traditional warrant protections and search for the
communications of a potentially large number of American citizens.
We have sought repeatedly to gain an understanding of how many
Americans have had their phone calls or emails collected and
reviewed under this statute, but we have not been able to obtain
even a rough estimate of this number.

So, when the intelligence establishment admits that the Fourth
Amendment was violated on “on at least one occasion,” that doesn’t
mean one person — it could be a large number of Americans scooped
up all at once in a wide-ranging operation.

Oh, but the Office of the Director of National Intelligence also
wants you to know that “The government has remedied these concerns
and the FISC has continued to approve the collection as consistent
with the statute and reasonable under the Fourth Amendment.”

Well … That’s all right then.