There's a little-known loophole provided by the PATRIOT Act and expanded by the 2008 FISA Amendment (the same one that Senator Obama voted for) that allows NSA three days to seek a warrant and seven under "exigent circumstances" - the government has interpreted this to mean that during that time, analysts are free to look at whatever they want in real-time (this program) and across US government and foreign databases. See, http://www.democraticunderground.com/?com=journals&uid=143890

Indeed, it is virtually certain that large amounts of US person data are available without warrants to NSA personnel, at least in the files of other agencies that analysts and contractors may access in the process of profiling suspected terrorists and other NSA targets. Under the law as it was changed by the PATRIOT Act, analysts have 72 hours to examine US person content before they have to seek a warrant. See FISA, 50 U.S.C. § 1801(h)(4): http://www.law.cornell.edu/uscode/text/50/1801

no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.


Furthermore, NSA and its contractors have a full week to seek a FISA warrant under "exigent circumstances". 50 U.S.C. § 1805(e)(3): http://www.law.cornell.edu/uscode/text/50/1805

(3) In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

PRISM is a “database of databases.” Analysts have access to many databases, both domestic and foreign intelligence agencies, and those contain information from all sources – and they generally are not minimized to segregate US person information. According to the sequence of steps shown in SLIDE 2, US person voice content does get separated out and sent to NUCLEON, and the metadata is deposited in MARINA, but only after a US person has gone through the profiling process. This suggests that US person content is utilized in some way at the initial profiling stage of PRISM, which appears to skirt the intent of FISA, if as we see below, loopholes allow it's use in practice.

Under the law, US person telco content is supposed to be "minimized" under Sec. 215 of the PATRIOT Act, and Sec. 216 is supposed to do the same for US person Internet records. Meanwhile Sec. 702 of the 2008 FAA (FISA Amendent Act) legalized the sort of targeted NSA activities that PRISM carries out, but that targeting is supposed to be restricted to foreign persons abroad. Nonetheless, because of loopholes in the law -- such as the allowance under Sec. 1801(h)(4) and 1805(e)(3) for up to seven days of unfettered viewing of US person data that has been worked into PRISM's Tasking process (profiling) -- it does not look like the FISA wall that is supposed to separate these two NSA programs provides any real separation.

• NOTE B, SLIDE 3: NSA intercepts email, on-line chats in real-time, CONTENT TYPES C,D

This appears to answer some of the issue of whether analysts can access communications in real-time, or whether they have to wait for a warrant. That question was raised by this report in CNET: http://news.cnet.com/8301-13578_3-57589495-38/nsa-spying-flap-extends-to-contents-of-u.s-phone-calls/

The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls, a participant in the briefing said.

Rep. Jerrold Nadler, a New York Democrat, disclosed on Thursday that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed "simply based on an analyst deciding that."

If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he learned. "I was rather startled," said Nadler, an attorney and congressman who serves on the House Judiciary committee.

Not only does this disclosure shed more light on how the NSA's formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

James Owens, a spokesman for Nadler, provided a statement on Sunday morning, a day after this article was published, saying: "I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans' phone calls without a specific warrant." Owens said he couldn't comment on what assurances from the Obama administration Nadler was referring to, and said Nadler was unavailable for an interview. (CNET had contacted Nadler for comment on Friday.)

Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, being able to listen to phone calls would mean the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.


Bear in mind two things: the system seems to handle phone, internet, and email messages differently, and under FISA as revised by the PATRIOT ACT, NSA analysts and contractors have 72 hours to do what they want with all data before seeking a warrant. A warrant is only required if the decision is made to target the individual.