NSA repeatedly ignored court surveillance rules, documents show
This latest document release marks a bid by the Obama administration, after massive leaks by former NSA contractor Edward Snowden, to demonstrate transparency on surveillance policy and privacy safeguards.
For more than two years, the National Security Agency violated legal guidelines set up by the secret federal intelligence court that oversees it, misleading the court’s judges about the surveillance it was conducting, top secret court documents released by the Obama administration show.Skip to next paragraph
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The court documents, released Tuesday, include a harshly worded court opinion in which a federal judge berates the NSA not just for failing to conduct phone record searches in accord with legal guidelines meant to protect Americans’ privacy, but for misleading the court that agency searches complied with those guidelines – when, most often, they did not.
While the release of the documents served to comply with the administration's pledges of increased transparency regarding surveillance policy and safeguards to Americans' privacy, critics of that policy said the documents' contents provide evidence of serious limitations in the judicial oversight of surveillance practices.
The Foreign Intelligence Surveillance Court (FISC) provides secret legal opinions intended to oversee intelligence community requests for surveillance. Under the court’s supervision, the NSA began collecting phone metadata in 2006 – the phone numbers at either end of a call, the call’s duration, time of day and other data, but not the content of the call itself.
Along the way, the court laid out guidelines for the NSA to meet in handling the data and conducting searches that were intended to protect Americans’ privacy. The court ruled, for instance, that the metadata should only be searched if there was “reasonable, articulable suspicion” of a link to terrorism or in an emergency.
Yet from May 2006 to January 2009, the NSA violated the court’s mandate, searching the telephone metadata it collected each day from the nation’s phone companies against an “alert list” of thousands of international and domestic phone numbers, according to a March 2009 opinion written by a FISC judge.
Only a fraction of those list numbers – about 10 percent of the 17,835 phone numbers on the government’s list in early 2009 – had a “reasonable, articulable suspicion” of a link to terrorism, as the court discovered in early 2009.
That’s when the Department of Justice notified the FISC that the NSA’s “alert list” search terms were not in compliance with the court’s requirements. Judges overseeing the court were not amused by the revelation.
“The government has compounded its noncompliance with the court’s orders by repeatedly submitting inaccurate descriptions of the alert list process” to the court, Judge Reggie Walton wrote. “It has finally come to light that the FISC’s authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses" the earlier collected phone metadata.
After the discovery, a full-blown investigation ensued. It found that more than 200 analysts from the FBI, CIA, and the National Counterterrorism Center had access to “query results” from the metadata database that did not correctly mask the identities of US persons, the Washington Post reported.
One of several examples cited in the March 2009 court opinion occurred from Dec. 10, 2008, to Jan. 23, 2009, when two NSA analysts used 280 foreign telephone identifiers to query the database “without determining that the Court’s reasonable articulable suspicion standard had been satisfied,” the March 2009 opinion by Judge Walton stated.
While the court has, at times, been accused of being a rubber-stamp for the NSA, the FISC judges’ opinions indicate a high level of frustration.
Another FISC judge, John Bates, also chided the NSA in 2011 for violations in another surveillance program, including misrepresentation by the agency. His 2011 opinion was released by intelligence officials last month.