The National Security Agency on Wednesday declassified three previously secret court rulings related to its domestic surveillance programs, including one revealing a massive unconstitutional collection of Americans’ emails.
While heavily redacted in some portions, the rulings from the Foreign Intelligence Surveillance Court are the most in-depth look into the NSA programs first revealed this summer to be gathering information from Americans. In one document, related to an April 2011 petition from the government to continue its collection of internet communications, FISC judge John Bates expressed his concern that the Court was only just learning of the extent of the collection process, which “exceeded the scope of collection previously disclosed by the government and approved by the Court.” This led the Court to realize that it had been operating under false pretenses in judging whether government actions are legal under Section 702 of the FISA Amendments Act.
At the heart of the FISC’s concern was the NSA’s “upstream collection” — constituting approximately 9 percent of the more than 250 million internet communications the NSA acquires yearly under Section 702 — which siphons off international data passing through U.S.-based cables into a repository where it could be stored for later analysis. This is separate from the discrete Internet communications acquired under the PRISM program, which it gets from Internet service providers. The transactions in question are effectively unable to be sorted between foreign and domestic traffic and further unable to distinguish between a single discrete communication and multiple communications which may or may not have been about the target the NSA analyst was searching for. As a result, thousands of solely domestic email conversations were swept up in the process.
The outcome was a ruling from the Court that the collection was unconstitutional, requiring the NSA to revamp its methods and purge all domestic communications from its databases in 2012. Despite the change in procedures, one footnote in the 2011 ruling spotlights the extent to which the administration had previously misled the Court over the breadth of the NSA’s programs:
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.
Contrary to the government’s repeated assurances, NSA has been routinely running queries of the metadata using querying terms that did not meet the standard required for querying. The Court concluded that this requirement had been “so frequently and systematically violated that it can be fairly said that this critical element of the overall … regime has never functioned effectively.”
The release of the formerly Top Secret documents is being portrayed as part of the Obama administration’s efforts to shine light on the NSA, in hopes of tamping down on criticism that the body lacks transparency. The administration has repeatedly insisted that the NSA’s programs are reviewed by all three branches of government in response to critic’s claims that the FISC serves as a “rubber-stamp” to the administration. And as promised in President Obama’s press conference on the matter two weeks ago, the government launched a website — hosted on Tumblr — to play host to the newly public documents as well as other items released since the scandal’s beginning. However, the documents’ release was not entirely voluntary, instead being the result of a Freedom of Information Act request from the Electronic Freedom Foundation and American Civil Liberties Union.