NSA believed that the ends justified the means - losing its moral moorings in the process (and not just its legal and constitutional foundations), in its obsessive quest to collect everything in order "to know everything" by building a surveillance system the likes the world had never seen -- in concert with partners (both nation state and corporate including telcos and telecoms) generating this hoarding complex of a huge "haystack of needles" -- highly misleading since the needles are supposed to identify the bad guys and the rest of the hay are the good guys -- but instead all individual straws in the hay are viewed as potential needles under this way of illogical thinking.
In the end, they did not want to bother with particularized court warrants and dropped automated tracking that would reveal improper or even unlawful government use of any data unlawfully collected -- they just wanted the data because exigent emergency conditions applied in the post 9/11 world.
Now 16+ years have passed since that fateful day of 11 Sep 2001 and the government intends to continue these unconstitutional and citizen eroding (albeit legalized) programs indefinitely, even if by other 'extra-legal' means to satisfy the ends of collection and surveillance in service to national security and other purposes.
The FISA-AA does not require the government to identify targets of their surveillance -- thus creating pre-emptive conditions (a predicate) for mass surveillance. Surveillance and data selection are not targeted, but are done dragnet style -- and not on individual or particularized "probable cause" suspicion but on "reasonable articulable suspicion" -- just mere suspicion or simply relevance for supporting national security intelligence purposes.
Furthermore, under the FISA-AA, the Foreign Intelligence Surveillance Court (FISC) can effectively interpret the Constitution in secret, instead of relying on US District, Appeals and Supreme Court review.
In addition, under Section 702 of the FISA-AA, the warrantless acquisition of communications is authorized (including US communications), when at least one party to the message is overseas and the target (the person or entity about which the government wants information), is a non-US person/entity labeled and declared foreign. But when intelligence officials describe the law, they don't say this and instead they say that the law allows them to target non-US persons reasonably believed to be abroad in order to collect foreign intelligence information. This encourages the false belief that only non-citizens fall under the Section 702 intelligence collection. People who know better are using very carefully chosen language to imply that Section 702 is legal with respect to Americans because it ostensibly has nothing to do with Americans (non-foreign) and that if Americans are affected, it is only rarely and accidental (or incidental) when it happens.
However, thanks to Snowden, we can no longer pretend that the Emperor of electronic surveillance is actually wearing clothes. A culture of kabuki dance enabling act 'legal' compliance still breaks the law as defined by the Constitution and the 4th Amendment. While section 702 does require a non-US entity as the designated target of surveillance, anyone who communicates with agents of the target, or has foreign intelligence information about the target is also subject to monitoring. Think of the myriad of examples of an American in the US communicating with somebody or some entity that is foreign (separate from the various ways electronic networks carry information irrespective of borders).
So, under Section 702 of the FISA-AA law, the government may warrantlessly acquire Americans' foreign to foreign or one-end of US communications to, from or about the target and warrantlessly acquire Americans' domestic communications, so long as the acquisition was unintentional.
However, it is important to point out that according to an earlier declassified 2011 FISA court opinion by Judge John Bates, the NSA obtained approximately 250 million communications under Section 702 that year alone. And a very large percentage of those messages, some 90+%, came from service providers like Google, Yahoo and Microsoft, via PRISM, with the remainder of the communications vacuumed off the fiber optic backbone of the Internet (otherwise known as upstream collection).
It is also important to point out at this point that when conducting upstream collection, NSA's collection/access systems are not restricted to just pulling single messages. These systems regularly and routinely capture what the NSA calls Internet transactions. However, an Internet transaction can comprise a single message called an SCT (Single Communication Transaction) in NSA-speak. However, Internet transactions also often contain multiple messages and the NSA refers to this bundle of messages as an "MCT" or Multiple Communications Transaction. So even if only one message in an MCT falls within this the NSA targeting term parameter, the NSA collection and access mechanisms pulls the entire package of messages.
Furthermore, MCTs can contain messages that have nothing to do with foreigners or foreign intelligence. In fact, let me point out that NSA's own internal auditing at the direction of Judge Bates that was earlier made public, places the number of improperly collected and wholly domestic US messages at approximately 56,000 for that year alone.
Therefore, US Person communications with targets overseas are subject to warrantless interception. Once those communications are collected, current rules allow the US government (including the FBI) to search this veritable treasure trove of US Person identifiers -- a decidedly 'seize all first, then search broadly later approach' that violates the individual/particularized standard under the 4th Amendment of person, place and thing.
Senator Ron Wyden (the warrant canary of the Senate on their Intelligence Committee) has called this 'approach' the backdoor search loophole. In addition, the non-US targets include the population of all US citizens, not just those who are agents of foreign powers. While analysts operate under the proviso of searching under a foreign intelligence purpose when selecting the target, the rationale is just one short sentence. This means that the collection and access in satisfying the 'end' of intelligence purposes sweeps up far more than just the targeted intelligence (the main reason given for 702 in the first place against foreign targets) and is therefore very much a wildcard that gives new meaning to incidental and accidental collection with respect to the definition of a target (a target that now encompasses and circumscribes populations of people and entities, not just a single foreign person or entity (the thing).
This convenient rationale serves as an exercise in cover and concealment for the real targeting focus when used as an explanatory justification to the oversight mechanisms as given by the Justice Department and the office of the Director of National Intelligence when NSA implements these Section 702 authorities under the FISA-AA. Under this rationale, intelligence analysts get to 'explain' their targeting decisions without providing any additional information regarding why.
These analysts are also not required to provide the evidence on which they base their "reasonable articulable suspicion" that a target will produce valid foreign intelligence. They also do not have to reveal or disclose the "selectors" (another word for search terms and parameters in term of the thing to seize) that they plan to use, and they can even strip out the details and substitute them with generic descriptions.
By effectively untethering the surveillance activities involving collection and access from the very facilities and communication means that a foreign target uses, the FISA-AA significantly incentivizes the NSA in obtaining data information about a target facility rather than just to or from info and data on the target as a person.
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