New Snowden Documents Reveal Secret Memos Expanding Spying

Without public notice or debate, the Obama administration has expanded the National Security Agency’s warrantless surveillance of Americans’ international Internet traffic to search for evidence of malicious computer hacking, according to classified NSA documents.

In mid-2012, Justice Department lawyers wrote two secret memos permitting the spy agency to begin hunting on Internet cables, without a warrant and on American soil, for data linked to computer intrusions originating abroad — including traffic that flows to suspicious Internet addresses or contains malware, the documents show.

The Justice Department allowed the agency to monitor only addresses and “cybersignatures” — patterns associated with computer intrusions — that it could tie to foreign governments. But the documents also note that the NSA sought to target hackers even when it could not establish any links to foreign powers.

The disclosures, based on documents provided by Edward J. Snowden, the former NSA contractor, and shared with the New York Times and ProPublica, come at a time of unprecedented cyberattacks on American financial institutions, businesses and government agencies, but also of greater scrutiny of secret legal justifications for broader government surveillance.

While the Senate passed legislation this week limiting some of the NSA’s authority, it involved provisions in the U.S.A. Patriot Act and did not apply to the warrantless wiretapping program.

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Government officials defended the NSA’s monitoring of suspected hackers as necessary to shield Americans from the increasingly aggressive activities of foreign governments. But critics say it raises difficult trade-offs that should be subject to public debate.

The NSA’s activities run “smack into law enforcement land,” said Jonathan Mayer, a cybersecurity scholar at Stanford Law School who has researched privacy issues and who reviewed several of the documents. “That’s a major policy decision about how to structure cybersecurity in the U.S. and not a conversation that has been had in public.”

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It is not clear what standards the agency is using to select targets. It can be hard to know for sure who is behind a particular intrusion — a foreign government or a criminal gang — and the NSA is supposed to focus on foreign intelligence, not law enforcement.

The government can also gather significant volumes of Americans’ information — anything from private emails to trade secrets and business dealings — through Internet surveillance because monitoring the data flowing to a hacker involves copying that information as the hacker steals it.

One internal NSA document notes that agency surveillance activities through “hacker signatures pull in a lot.” Brian Hale, the spokesman for the Office of the Director of National Intelligence, said, “It should come as no surprise that the U.S. government gathers intelligence on foreign powers that attempt to penetrate U.S. networks and steal the private information of U.S. citizens and companies.” He added that “targeting overseas individuals engaging in hostile cyberactivities on behalf of a foreign power is a lawful foreign intelligence purpose.”

The effort is the latest known expansion of the NSA’s warrantless surveillance program, which allows the government to intercept Americans’ cross-border communications if the target is a foreigner abroad. While the NSA has long searched for specific email addresses and phone numbers of foreign intelligence targets, the Obama administration three years ago started allowing the agency to search its communications streams for less-identifying Internet protocol addresses or strings of harmful computer code.

The surveillance activity traces to changes that began after the Sept. 11 terrorist attacks. The government tore down a so-called wall that prevented intelligence and criminal investigators from sharing information about suspected spies and terrorists. The barrier had been erected to protect Americans’ rights because intelligence investigations use lower legal standards than criminal inquiries, but policy makers decided it was too much of an obstacle to terrorism investigations.

The NSA also started the warrantless wiretapping program, which caused an outcry when it was disclosed in 2005. In 2008, under the FISA Amendments Act, Congress legalized the surveillance program so long as the agency targeted only noncitizens abroad. A year later, the new Obama administration began crafting a new cybersecurity policy — including weighing whether the Internet had made the distinction between a spy and a criminal obsolete.

“Reliance on legal authorities that make theoretical distinctions between armed attacks, terrorism and criminal activity may prove impractical,” the White House National Security Council wrote in a classified annex to a policy report in May 2009, which was included in the NSA’s internal files.

About that time, the documents show, the NSA — whose mission includes protecting military and intelligence networks against intruders — proposed using the warrantless surveillance program for cybersecurity purposes. The agency received “guidance on targeting using the signatures” from the Foreign Intelligence Surveillance Court, according to an internal newsletter.

In May and July 2012, according to an internal timeline, the Justice Department granted its secret approval for the searches of cybersignatures and Internet addresses. The Justice Department tied that authority to a pre-existing approval by the secret surveillance court permitting the government to use the program to monitor foreign governments.

A History of Warrantless Wiretapping