WASHINGTON – For several years, the National Security Agency unlawfully gathered tens of thousands of emails and other electronic communications between Americans as part of a now-revised collection method, according to a 2011 secret court opinion.
The redacted 85-page opinion, which was declassified by U.S. intelligence officials on Wednesday, states that, based on NSA estimates, the spy agency may have been collecting as many as 56,000 “wholly domestic” communications each year.
In a strongly worded opinion, the chief judge of the Foreign Intelligence Surveillance Court expressed consternation at what he saw as a pattern of misleading statements by the government and hinted that the NSA possibly violated a criminal law against spying on Americans.
“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” John Bates, then the surveillance court’s chief judge, wrote in his Oct. 3, 2011, opinion.
The court, which meets in secret, oversees the Foreign Intelligence Surveillance Act, the law authorizing such surveillance in the United States. It has been criticized by some as a “rubber stamp” for the government, but the opinion makes clear the court does not see itself that way.
Bates’ frustration with the government’s lack of candor extended beyond the program at issue to other NSA surveillance efforts. “The court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” Bates wrote.
The Washington Post reported last week that the court had ruled the collection method unconstitutional. The declassified opinion sheds new light on the volume of Americans’ communications that were obtained by the NSA and the nature of the violations, as well as the FISA court’s interpretation of the program.
The release marks the first time the government has disclosed a FISA court opinion in response to a Freedom of Information Act lawsuit. The lawsuit was brought a year ago by the Electronic Frontier Foundation, a privacy group.
The pressure to release the opinion was heightened by a series of recent revelations about government surveillance based on documents leaked to The Washington Post and Britain’s Guardian newspaper by former NSA contractor Edward Snowden.
Over the past 2½ months, those revelations have reignited a national debate on the balance between privacy and security, and President Barack Obama has promised to assuage concerns about government overreach, in part through more transparency.
The document was released along with several others related to a controversial collection program approved by Congress in 2008 under Section 702 of the FISA Amendments Act. Through that program, the NSA may target for collection the emails and phone calls of foreigners “reasonably believed” to be overseas.
Under Section 702, the NSA collects more than 250 million Internet communications each year, the opinion said. The vast majority — 91 percent — are obtained from Internet providers such as Google, Yahoo and AOL through a program code-named PRISM.
At issue here was the less voluminous “upstream” collection that takes place as communications flow across Internet hubs — not from service providers such as Google.
Under that program, the NSA diverted international data passing through fiber-optic cables in the United States into a repository where the material could be stored temporarily for processing and for the selection of foreign communications, rather than domestic ones. But in practice, because of technological difficulties, the NSA was unable to filter out the “wholly domestic” communications between Americans.
Officials stressed that it was the NSA that brought the collection method to the court’s attention as part of its regular reporting process.
“This was not in any respect an intentional or wholesale breach of privacy of American persons,” said Robert Litt III, the general counsel for the Office of the Director of the National Intelligence.
Still, Bates noted that it was not until May 2011 — several years after Section 702 was approved — that the NSA told the court that its upstream collection of Internet communications may contain entire Internet “transactions” not related to the target. In other words, the agency may be collecting emails between two Americans or people inside the U.S. in violation of FISA.
In June 2011, the NSA informed Bates that an Internet transaction may be a single communication or it may include “multiple discrete communications,” including those that are not to, from or about a target. That means instead of one email, a string of Americans’ emails could be inadvertently picked up. “That revelation fundamentally alters the court’s understanding of the scope of the collection conducted pursuant to Section 702,” Bates said.
“By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA has, as a practical matter, circumvented the spirit of [the law],” Bates wrote. “NSA’s knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause of concern for the court.”
He ordered the collection to stop until the NSA could propose an acceptable remedy. In November 2011, Bates signed an order approving the fix, which included a new technical means to segregate transactions most likely to contain U.S. persons’ communications and reducing the retention period from five to two years.
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