NSA Program Secretly Ruled Unconstitutional in 2011

Image: NSA Program Secretly Ruled Unconstitutional in 2011 Director of National Intelligence James Clapper

Wednesday, 21 Aug 2013 05:31 PM

By Todd Beamon

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The National Security Agency illegally gathered as many as 56,000 emails and other electronic communications between Americans with no connection to terrorism as part of a collection program that was ruled unconstitutional by a secret spy court in 2011.

The Foreign Intelligence Surveillance Court rendered its decision in an 86-page opinion on Oct. 3, 2011. It was declassified Wednesday by U.S. intelligence officials, and Director of National Intelligence James Clapper authorized the release of the opinion.

"This is not an egregious overreaching by a greedy agency seeking to spy on Americans," a senior intelligence official said. "This is a technological problem that resulted in an inadvertent collection of a relatively small number of U.S. personal communications."

In the opinion, Chief Judge John Bates found that the government had "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."

Bates said the court must rely on the government to say when it improperly spies on Americans, according to the opinion.

The information had been collected since at least 2006, Bates said in the opinion.

Sen. Bob Corker of Tennessee, a ranking GOP member of the Senate Foreign Relations Committee, called for a hearing next month before the full Senate with NSA Director Keith Alexander.

"This briefing should discuss the totality of NSA operations, including, but not limited to, those that have already been discussed publicly," Corker wrote in a letter to President Barack Obama on Wednesday.

"Given the scope and scale of the disclosures to date and the significant likelihood of more to come, it is now all the more important that the administration come to Congress and provide a full accounting of the totality of these efforts," Corker said.

Under the program, the NSA for three years diverted huge volumes of international data passing through fiber-optic cables in the United States into a repository where it could be temporarily stored for processing and for the selection of foreign communications, rather than domestic ones.

But in practice, the agency was unable to filter out the communications among Americans, many of which were bundled with the targeted materials.

Because many web mail services use such bundled transmissions, the senior intelligence official said, it was impossible to collect the targeted materials without also sweeping up data from innocent domestic U.S. users.

The data were being gathered with the cooperation of telecommunications providers like AT&T, other senior intelligence officials said.

The officials said the NSA realized that when it was gathering up bundled Internet communications from fiber-optic cables, it often was collecting thousands of emails or other Internet transactions by Americans who had no connection to the intended terror target being tracked.

The problem became apparent during internal discussions between NSA and Justice Department officials about the program's technical operation, the senior intelligence official said.

"They were having a discussion and a light bulb went on," the official said.

The officials did not explain, however, why they did not prepare for that possibility when the surveillance program was created and why they discovered it only after the program was well under way.

When the NSA realized it had an American communication, the communication was destroyed, the officials said. But it was not clear how they determined to whom an email belonged or whether any NSA analyst had actually read the content of the email.

The officials said the bulk of the information was never accessed or analyzed.

"For technological reasons, NSA was not capable of breaking those down, and still is not capable of breaking those down into their individual components," one official said. "So if you had a situation where one of those emails may have referenced your targeted email in the subject line, you'd nonetheless collect the whole inbox list.

"It's like a screenshot: You get whatever is popping up on your screen at the time," the official added. "On occasion, some of those might prove to be wholly domestic."

According to NSA estimates, the agency may have been collecting as many as 56,000 "wholly domestic" communications each year.

As soon as the extent of the problem became clear, the officials said, the Obama administration provided classified briefings to both Senate and House intelligence committees within days.

At the same time, officials also informed the secret surveillance court, which later issued its 2011 ruling against the program.

A month after the foreign intelligence surveillance court's ruling, the NSA revised its collection procedures to separate the transactions most likely to contain the communications of Americans.

In 2012, the agency also purged the domestic communications that it had collected.

"This was not in any respect an intentional or wholesale breach of privacy of American persons," Robert S. Litt III, the general counsel for the Office of the Director of National Intelligence, told The Washington Post on Wednesday.

Officials stressed that it was the NSA that brought the collection method to the court's attention as part of its regular reporting process.

Besides the October 2011 court ruling, which was heavily redacted, U.S. intelligence officials on Wednesday released other documents, including a follow-up order about the NSA's revised collection methods.

The documents were released in response to a Freedom of Information Act lawsuit filed by the Electronic Frontier Foundation.

The Associated Press and Bloomberg News contributed to this report.



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