The document, a written response from the NSA to an Intelligence Committee staffer’s question, was released Monday in response to the Electronic Frontier Foundation’s ongoing Freedom of Information Act lawsuit seeking the disclosure of the NSA’s records of millions of Americans’ telephone calls.
It reveals that the NSA tested phone records in April 2010 for cell site location information – an action that the Department of Justice advised “was permissible based upon the current language of the court’s BR FISA order requiring the production of ‘all call detail records.'”
BR FISA is shorthand for business record information that the FBI acquired pursuant to the Foreign Intelligence Surveillance Act.
The agency did not seek explicit permission for this expansion of its collection efforts, and the Department of Justice only “orally advised” the Foreign Intelligence Surveillance Court (FISC) of the cell mobility data collection effort.
No legal analysis of this surveillance expansion was made until after the data had been collected, according to the document, which states: “I have since discovered that DOJ is drafting a memorandum of law on this topic. Accordingly, requests for information regarding or copies of this legal memoranda should be made directly to the Department of Justice through their Office of Legislative Affairs.”
In a statement, the Electronic Frontier Foundation said this document supplies additional evidence of the agency’s “collect first, seek authorization later” mentality.
“Keep this in mind, too: approximately a year prior, the FISC nearly shut down the call record program after the agency repeatedly misled the court about how and under what circumstances it was accessing Americans’ call records. To then obtain extraordinarily sensitive information about the movements of Americans – without first informing either the FISC or any of NSA’s Congressional oversight bodies – smacks of a fundamental disregard for the NSA’s oversight system and the coordinate branches of government,” the EFF said.
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