A layman might suppose that in the United States a telephone conversation cannot be intercepted by an intelligence agency such as the NSA except in compliance with the laws and guidelines governing intelligence collection.
But it’s more complicated than that because “interception” is not considered “collection,” according to a Department of Defense regulation.
“Information shall be considered as ‘collected’ only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties.”
“Data acquired by electronic means is ‘collected’ only when it has been processed into intelligible form.”
See DoD 5240.1-R, “Procedures Governing the Activities of DoD Intelligence Components that Affect U.S. Persons,” (pdf) December 1982, at paragraph C2.2.1.
“This would suggest that automated speech recognition software, creating records on US persons for purposes of pattern recognition to detect sleeper cells, would not be prohibited,” said John Pike of GlobalSecurity.org, who first called attention to this provision.
In other words, defining “collection” in the peculiar way that the DoD regulation does appears to permit the NSA to conduct automated surveillance without violation of strictures on unauthorized domestic collection.
“And by the time a US person became a ‘person of interest’ as a result of this process, there would be reason to believe [probable cause] they were an agent of a foreign power,” he proposed.
“So why did NSA not take this approach?” Mr. Pike asked. “Why not just claim this, rather than making the rather more heroic legal claims they are making?”
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