On July 28, 2009, 189 days after Barack Obama became president, Attorney General Eric Holder (himself only six months into office) presented the secret Foreign Intelligence Surveillance Court (FISC) with a list of ways in which the NSA and FBI would try and assure that the data it collected under the Foreign Intelligence Surveillance Act came only from non-Americans. The delineation, released today by The Guardian, includes several ways in which collection of data from Americans is both likely — and allowed.
The paper's two new documents, one showing how non-Americans are targeted and the other how collection from Americans is "minimized," are almost certainly the latest files to come from the Edward Snowden leak. These documents are particularly significant given the repeated recent insistences that the government does all it can to minimize collection of Americans' data, something which is not legally allowed under FISA. (These documents only apply to collection under FISA, including the provisions of Section 702 that allowed PRISM. Section 215 of the Patriot Act, which allows the sweeping collection of data from phone companies, knowingly and legally collects data about Americans.)
Members of both the House and the Senate have called for the release of documents that do precisely what these do: outline how and when the NSA might collect domestic data, and how it tries not to. One of the points these documents raise is that, given the breadth of the agency's collection efforts, collecting data from Americans almost necessarily occurs. According to a separate, one-paragraph document The Guardian has seen, however, the FISC found the procedures described by Holder to be "consistent with US law and the fourth amendment."