It would be difficult for the NSA to target communications about specific people, as the agency says it does, without having broader access to Internet or telephone traffic, he said.
"My understanding is there is no way to engage in 'about' surveillance without inspecting, in some sense, every communication within the universe of those that you are monitoring," he said. "You can call that bulk collection, or you could call that something else, but that scanning of every communication in a particular universe raises constitutional issues."
Jaffer and two other witnesses told the privacy board the NSA programs violate the Fourth Amendment to the U.S. Constitution, which protects U.S. residents against unreasonable searches and seizures. While the NSA says it does not target U.S. residents, there are few procedures in place to keep the agency from collecting information about U.S. residents, said Laura Donohue, a professor at the Georgetown University Law School.
In addition, the underlying law puts few limits on the NSA sharing information it has collected with law enforcement agencies in the U.S., she said.
Because the NSA foreign surveillance programs target people reasonably believed to be overseas, there is no Fourth Amendment issue, countered ODNI's Litt. People who live outside the U.S. "do not have rights under the Fourth Amendment," he said. "The Constitution does not require individualized warrants to target them."
Litt called the overseas surveillance programs important for U.S. national security. The overseas surveillance program is "one of the most valuable collection tools that we have," he said. "It is one of our most important sources of information, not only about terrorism, but about a wide variety of other threats to our nation."
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