The NSA has released a statement sidestepping questions about whether it spies on members of Congress. On Friday, Senator Bernie Sanders (I-VT) asked NSA head Keith Alexander if the agency was "spying," or had ever spied, on American Congress members or other elected officials. Today, the NSA provided an equivocal answer, promising that Congress has "the same privacy protections as all US persons. "NSA's authorities to collect signals intelligence data include procedures that protect the privacy of US persons," reads the statement, provided to The Guardian. "Such protections are built into and cut across the entire process. Members of Congress have the same privacy protections as all US persons. NSA is fully committed to transparency with Congress."
Sanders' letter said that his definition of spying "would include gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business." The NSA said that it was "reviewing" the letter and would work to give Sanders and other members of Congress more information, but it didn't deny using any of the above surveillance techniques. If anything, saying that Congress members receive the same protections as other citizens implies that their information is indeed being collected and could theoretically be queried as part of an investigation. Previously, US intelligence agencies have been found to have monitored the phones of national leaders abroad, including German chancellor Angela Merkel.
"Members of Congress have the same privacy protections as all US persons."
Members of Congress have expressed varying degrees of knowledge about the NSA's surveillance programs. After the first leaked documents appeared in June, President Obama, Senator Dianne Feinstein (D-CA), and others said that Congress had been briefed extensively, but one representative said he hadn't been given crucial documents before voting on a reauthorization of the FISA Amendments Act, which expanded the intelligence community's powers. The issue was further obfuscated in a March 2013 Senate hearing, where Director of National Intelligence James Clapper falsely denied that the NSA had collected data on millions of Americans. Since then, lawmakers in both houses have expressed outrage, calling for his resignation and an official Department of Justice investigation.
The phone records collection Sanders references, meanwhile, is hotly contested in court. In December, two judges in New York and Washington, DC issued directly conflicting rulings on whether mass metadata surveillance constitutes an illegal search, and both the ACLU and Department of Justice have filed appeals against their respective losses. If the program is declared unconstitutional or is outlawed by Congress, the NSA will likely instead rely on phone companies to store the information, accessing it only if agents can meet a higher burden of proof.