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The NSA does not attempt to filter out their calls, defining them as communications “acquired incidentally as a result of collection directed against appropriate foreign intelligence targets.”

The term "incidentally" is derived from the FISA Amendments Act (FAA) Section 702, which contains a loophole the size of a galaxy. You might remember the FAA from the provision giving the telecommunications companies immunity for cooperating with the warrantless wiretapping program, which we now know - thanks again to Edward Snowden - included the bulk metadata collection program before NSA decided to "bring it under the law" by reinterpreting the law. (Note to would be lawyers, don't try that sort of argument on the bar exam.) At the time the FAA was passed, the intelligence community and its apologists touted it as allowing surveillance of suspected terrorists, not entire populations, even going so far as to say:

There is nothing to fear in the bill [FAA], said Senator Christopher S. Bond, the Missouri Republican who was a lead negotiator, “unless you have Al Qaeda on your speed dial.”

Incidentally (pun intended), the Privacy and Civil Liberties Board, an independent federal agency that already found NSA violated the law with its bulk metadata collection program, is investigating NSA surveillance purportedly under FAA Section 702. The PCLOB is holding a hearing today that will be broadcast on C-SPAN Channel 2.

Let's not forget that this latest revelation is not the first time NSA has been caught with its hand in the content cookie jar. Snowden explained in a TED Talk yesterday that other previously-revealed programs, like PRISM, are not "just metadata."  

NSA whistleblower Bill Binney gave the public a similar warning in 2011:

Binney, for his part, believes that the agency now stores copies of all e-mails transmitted in America, in case the government wants to retrieve the details later. In the past few years, the N.S.A. has built enormous electronic-storage facilities in Texas and Utah. Binney says that an N.S.A. e-mail database can be searched with “dictionary selection,” in the manner of Google. After 9/11, he says, “General Hayden reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.”
The documents from Snowden prove Binney right and the "it's just metadata" crowd wrong. Now it is up to Congress and the courts to hold the Executive branch accountable.

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