Around 1:30 p.m. on Christmas Eve, the National Security Agency released hundreds of pages of heavily-redacted reports detailing numerous instances over the past decade in which agents intentionally or unintentionally violated the law and improperly collected private data. The revelations, triggered by a Freedom of Information Act request from the American Civil Liberties Union, still fail to disclose how many violations occurred and how many were unlawful.
Despite these pervasive white-outs, the records reveal that the agency did collect emails, phone records and other data — intentionally and unintentionally — about US citizens or foreign nationals in the United States, in violation of the law. In several instances, analysts then shared this improperly collected information with people not authorized to see it, including the military. Further inspiring confidence, inadequately trained agents also accidentally searched themselves in multiple instances.
Even when the misconduct was intentional — as in the case of an agent using the powerful tools at her disposal to surveil her own spouse — the agent was merely “advised to cease her activities.” The offender reportedly “searched her spouse’s personal telephone directory without his knowledge to obtain names and telephone numbers for targeting.”
Such intimate spying practices are so common in the NSA that they have a name: LOVEINT, which stands for love intelligence. Because most instances of LOVEINT were self-disclosed, it is possible that far more violations occurred, but went unreported. Former NSA analyst Edward Snowden has also alleged that agents would routinely pass around nude photos they stumbled upon in the course of their surveillance.
While the agency assured its government overseers that they ensured accountability for misconduct, promising “appropriate disciplinary or administrative action,” such violations were usually answered with “counseling.” One typical entry on the long list of illegal searches concludes, “The analyst was reminded to exercise caution.”
In a statement sent to ThinkProgress, ACLU attorney Patrick Toomey criticized the NSA for conducting the spying “almost entirely in secret and without legislative approval or judicial review,” and said the newly released documents “show an urgent need for greater oversight.”
Jesselyn Radack with the Government Accountability Project, who has been working on Edward Snowden’s legal team, emphasized that these revelations would never have been possible without her fugitive client. “The ACLU only knew what to ask for because of the Snowden leaks,” she said. “There’s been semantics games with the NSA not using regular definitions for words like ‘collection’ and ‘analysis,’ which makes it very difficult to find the documents we’re looking for. Now, at least we have a road map and we know names of specific programs to ask about.”
Radack also told ThinkProgress that she suspects the release of the documents intentionally came at a time few would be paying attention. “It was an extremely conspicuous and shameless move to release this on Christmas Eve, but it’s entirely in keeping with the fact that the Director of National Intelligence has done similar kinds of document dumps on Friday afternoons in order to avoid the media cycle,” she said.
The NSA was not the only government agency to release unsavory details about its surveillance practices on Christmas Eve.
The Justice Department also published reports on how the FBI used the PATRIOT Act to search the business records and databases of American companies over the past several years — more than 100 times between 2002 and 2005 alone. The type of information demanded included drivers licenses, telephone records, apartment records and credit card statements. The Foreign Intelligence Surveillance Court (FISA), which critics have called a “rubber stamp” for illegal surveillance, approved every single request for this private data.
The report says the FBI violated the law on at least two occasions. In both instances, they wiretapped a phone no longer used by the subject, and illegally collected data on another person not suspected of any crime.
The FBI also submitted requests for private data on university student and library patrons, but withdrew those requests. The Justice Department noted that had they not canceled those efforts, they may have violated privacy laws in those fields. Troublingly, the DOJ report determined after many interviews that “FBI field offices still do not fully understand Section 215” of the PATRIOT Act, and “the FBI did not create any analytical intelligence products based on the information obtained.” Neither did they use anything from all the controversial wiretaps and private data sweeps to bring criminal charges against anyone or “disrupt a terrorist plot.”
Update:
This post has been updated with comments from Jesselyn Radack, a human rights and national security attorney on Edward Snowden’s legal team.