Judge on Secret Court Chided NSA on Its Illegal Programs
(CN) - A judge on the Foreign Intelligence Surveillance Court ordered the National Security Agency to stop its Internet surveillance of U.S. citizens as early as 2011, three newly declassified documents show.
The heavily redacted documents show that one of the NSA's surveillance efforts gathered and stored up to 56,000 Americans' emails and other communications over three years, and that it was gathering data years before it was authorized to do so by the USA Patriot Act's Section 702 in 2008.
The NSA has disclosed that it gathered 250 million Internet communications a year, and that 9 percent of those come from "upstream channels" of up to 25 million emails a year.
As many as 56,000 Internet communications collected were sent by Americans or people in the U.S. "with no connection to terrorism," the FISC judge wrote.
"That revelation fundamentally alters the court's understanding of the scope of the collection conducted" and "requires careful examination of many of the assessments and presumptions underlying its court approvals," the judge said.
A court order required the NSA to resolve the problem by tailoring whom it can search and what data can be stored.
The agency agreed to keep the communications for only two years, instead of the usual five.
In a Nov. 30, 2011, secret opinion, the FISC concluded that the NSA's "amended minimization procedures adequately address the deficiencies identified in the October 3 [FISC] Opinion with respect to information acquired pursuant to Certifications [redacted]."
In a Sept. 25, 2012 ruling, the FISC concluded that the government had resolved the deficiencies the secret court cited on Oct. 3, 2011.
The Oct. 3, 2011, ruling from FISC Judge John Bates finds that the electronic communications collections program are unconstitutional. Bates is now a judge for the U.S. District Court of the District of Columbia.
"The government's admissions make clear not only that NSA has been acquiring Internet transactions since before the court's approval," Bates wrote in the heavily redacted 85-page opinion, but "also that NSA seeks to continue the collection of Internet transactions."
The ACLU provided the opinions on its website.
"The ACLU and others have long suspected that the National Security Agency is relying on its authority to target foreigners abroad as a useful cover for its sweeping surveillance of Americans' communications," the ACLU said in a statement. "These suspicions were proven true when, on June 5, 2013, The Guardian [newspaper] released the first in a series of documents detailing the NSA's spying activities."
Bates' ruling indicated - in a heavily redacted footnote - that the NSA collected about 13.25 million Internet transactions through its upstream collection system, and that during a six-month period, 996 to 4,965 of them contained a "wholly domestic communication not to, from or about a tasked selector."
In sum, NSA's collection of data "results in the acquisition of a very large number of Fourth Amendment-protected communications that have no direct connection to any targeted facility and thus do not serve the national security needs," Bates wrote.
"This 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 had disclosed a substantial misrepresentation regarding the scope of a major collection program," Bates wrote in a footnoted section.
He found that the actions were unconstitutional and ordered the agency to fix the problem.
Director of National Intelligence James Clapper said the government was releasing the documents in the interest of transparency.
Another highly redacted footnote shows Bates urging NSA to "continue working to enhance its capability to limit acquisitions only to targeted communications."
"The principal problem with the government's proposed handling" of the information "relates to what will occur, and will not occur, following acquisition," Bates wrote.
Bates faulted the Obama administration's methodology and the ways it went about reducing the numbers of Americans who were inadvertently targeted.
"The court's review of the targeting and minimization procedure submitted with the April 2011 submissions is complicated by the government's recent revelation that NSA's acquisition of Internet communications through its upstream collection ... is accomplished by acquiring Internet 'transactions,' which may contain a single, discrete communication, or multiple discrete communications, including communications that are neither to, from, nor about targeted facilities," Bates wrote.
The release of the judge's previously secret opinion and two 2011 rulings on the NSA's surveillance came two weeks after a federal judge in Washington, D.C., gave the government time to decide what it can declassify before the release.
The Electronic Frontier Foundation sued the government a year ago, seeking summary judgment to force the government to release the secret rulings.
The judge ordered the agency to destroy all the data gathered between 2008, and reexamine many of the assessments and presumptions underlying its prior approvals.
The Obama administration dismissed its alleged infractions as an unintended consequence of gathering bundles of Internet traffic connected to terror suspects.
NSA analyst-turned-fugitive Edward Snowden revealed that the NSA's spying programs gathered millions more communications than Americans suspected.
Snowden, a contract computer specialist who worked with the CIA and the NSA, leaked details of several top-secret surveillance programs, in what has been called the most significant leak of classified intelligence in U.S. history.
Snowden is charged with espionage and theft of government property. He has been granted political asylum for one year by Russia.
"I don't think Mr. Snowden was a patriot," Obama said. "I called for a thorough review of our surveillance operations before Mr. Snowden made the leaks. We would have done so without putting our national security at risk."
The president said at a news conference that he had a three-point plan to address the court's concerns, and that he will work with Congress to encourage transparency on the secret court.