Documents signed by Eric Holder say NSA can keep citizen's data forever

Documents signed by US attorney general say retention OK if there is a link to terror or crime

PUBLISHED : Saturday, 22 June, 2013, 12:00am
UPDATED : Saturday, 22 June, 2013, 3:51am


The US National Security Agency can keep copies of intercepted communications from or about American citizens if the material contains significant intelligence or evidence of crimes, according to top-secret documents newly published by The Guardian newspaper.

The new documents concern the scope of two recently disclosed NSA programmes - one that gathers US phone records and another that is designed to track the use of US-based internet servers by foreigners with possible links to terrorism.

The documents were signed by the country's top lawyer, Attorney General Eric Holder. They include point-by-point directions on how an NSA employee must work to determine that a person being targeted has not entered the United States.

If the NSA finds the target has entered the US, it will stop gathering phone and internet data immediately, the documents say. If supervisors determine that information on a US person or a target who entered the US was intentionally targeted, that information is destroyed, according to the documents.

But if a foreign target has conversations with an American or a US-based person NSA supervisors determine is related to terrorism, or the communication contains significant intelligence or evidence of crimes, that call or e-mail or text message can be kept indefinitely.

Encrypted communications can also be kept indefinitely, according the documents.

Administration officials had said the US phone records NSA gathered could only be kept for five years. A fact sheet those officials provided to reporters mentioned no exceptions.

The documents outline fairly broad authority when the NSA monitors a foreigner's communications. For instance, if the monitored foreigner has been criminally indicted in the US and is speaking to legal counsel, the NSA has to cease monitoring the call. The agency, however, can log the call and mine it later so long as conversation protected by lawyer-client privilege is not used in legal proceedings against the foreigner.

A senior US intelligence official said that while the possibility of incidental collection of Americans' calls and e-mails has always been acknowledged, the NSA's goal is to target foreigners. "The point we've been making is this is not a tool for listening to Americans," the official said.

Another US official noted that the default procedure when an American is incidentally picked up is to stop listening and destroy the record, and that exceptions are made mostly for threats to security.

"If there's a terrorist attack planned or a threat of a cyberattack, I think Americans want us to pay attention to it," the official said. Both officials agreed to discuss the classified rules on condition of anonymity.

But the deputy legal director of the American Civil Liberties Union, Jameel Jaffer, said the detailed rules only underscored the intrusion on privacy from the NSA's eavesdropping.

"From the beginning the concern was that the government would sweep up Americans' communications in the course of surveillance directed at people outside the country," Jaffer said. "These documents suggest that it's even worse than we thought."

He noted a clause about restrictions on the intercepting of lawyer-client communications but said it allowed wide latitude for sharing such communications inside the government.

"The exceptions swallow the rule," Jaffer said.

The NSA had no comment when asked about the newly revealed documents.

Additional reporting by The New York Times