A CNET article this weekend raised concerns that, in addition to requesting information from telephone and digital service providers, NSA analysts have the power to listen in on actual phone calls at their discretion. The story drew upon a disclosure at a Thursday House Judiciary hearing by Rep. Jerrold Nadler (D-N.Y.), who said that he was told during a classified Capitol Hill briefing that the NSA could listen to specific phone calls without a warrant. This revelation appeared to confirm the claims of NSA leaker Edward Snowden, who told the Guardian that as an NSA agent, he possessed the ability to "wiretap anyone from you or your accountant to a federal judge to even the president."
However, at Thursday's hearing, FBI Director Robert Mueller contested Nadler’s claim, stating that in order to listen in on a phone call, the government would need “a special, a particularized order from the FISA court directed at that particular phone of that particular individual.” Nadler countered that in the intelligence briefing he had been told “precisely the opposite,” saying:
We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that…In other words, what you just said is incorrect. So there’s a conflict.
The exact definition of “specific information,” though, is ambiguous. Kevin Drum from Mother Jones speculated that Nadler could have misunderstood what he was told on Capitol Hill, “confusing the ability of an analyst to get subscriber information for a phone number with the ability to listen to the call itself.”
And now it appears that Nadler has backed down from his initial claim. On Sunday morning, James Owens, a spokesman for Nadler, issued a statement saying, "I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans' phone calls without a specific warrant."
That same day, Director of National Intelligence James Clapper issued a statement backing up Nadler’s revised position:
The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress. Members have been briefed on the implementation of Section 702, that it targets foreigners located overseas for a valid foreign intelligence purpose, and that it cannot be used to target Americans anywhere in the world.
If it does prove accurate, however, that the NSA can listen to our phone calls without a warrant, then it follows that the agency can also access the contents of our communications on the Internet just as easily, since the same legal standards applying to phone calls similarly apply to e-mails, texts, and instant messages—potentially broadening the already troubling scope of the NSA’s domestic spying programs.