Key rulings from the government's secret surveillance court detailing tens of thousands violations of the Fourth Amendment and the NSA's response will shortly be made public by the Director of National Intelligence, following a lawsuit from the Electronic Frontier Foundation.
According to an early Associated Press report, the documents outline as many as 56,000 incidents annually in which the government violated Americans' privacy by improperly collecting information from email. In other words, the NSA, which is not allowed to conduct surveillance on Americans, gathered domestic communication in a way that conflicted with the Fourth Amendment. The figure above appears to be just an estimate, however, pulled from a review conducted by the NSA in which it was discovered that .197 percent of transactions were entirely domestic.
One footnote from ruling by that court indicates that this was not the first problem it had uncovered.
The 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 has disclosed a substantial misrepresentation regarding the scope of a major collection program.
One government official said that today's release was intended to show that "people shouldn't go into a panic based on what they read in the press." The government hopes that the documents as a group provide a fuller picture of both the government's privacy violations and its response to them.
An image from the filing.
- FISA Court rulings from October 2011 (below), November 2011, and September 2012. The October 2011 document finds that the NSA's collection of emails violated Constitutional protections. The November ruling offers rules intended to minimize improper collection. The September 2012 is a review of the clean-up effort.
- The NSA's minimization procedures intended to respond to those rulings. These procedures, a version of which was leaked by Edward Snowden, suggest the procedures used to reduce the collection of information from Americans.
- The most recent version of the violations documentation, similar to the document reported on by the Post this week.
The October 2011 ruling summarizes the problem with the NSA's data collection. The heavily-redacted document is not the same as the recently-reported one outlining violations uncovered by an internal NSA audit. Instead, this is a decision by the Foreign Intelligence Surveillance Act Court, acting in its oversight role, in which the NSA's collection was found in violation of the Constitution.
In sum, then, NSA' s upstream collection is a small, but unique part of the govennnent' soverall collection under Section 702 of the FAA. NSA acquires valuable information through its upstream collection, but not without substantial intrusions on Fourth Amendment-protected interests. Indeed, the record before this Court establishes that NSA 's acquisition of internet transactions likely results in NSA acquiring annually tens of thousands of wholly domestic communications, and tens of thousands of non-target communications of persons who have little or no relationship to the target but who are protected under the Fourth Amendment. Both acquisitions raise questions as to whether NSA's targeting and minimization procedures comport with FISA and the Fourth Amendment.
Emphasis added. During a conference call with the press, a government official confirmed that Congressional overseers were told "within days" of the violations that spurred the FISC's ruling. The violations, he said, were a "technical issue that could not be avoided, not any sort of overreach by the NSA."
Reporters described the key error that led to the violations.
In nutshell, the prob w/ upstream collection was NSA was grabbing a "screenshot" of a target's email inbox. That included US person data.— Shane Harris (@shanewharris) August 21, 2013
...NSA could get wholly domestic communications b/c it could not de-bundle for technological reasons.— Marc Ambinder (@marcambinder) August 21, 2013
The September 2012 document suggests that the difficulty in segregating email may be why the government ended its email metadata collection program in 2011.
Thereafter, in April 2012, the government orally informed the Court that NSA had made a "corporate decision" to purge all data in its repositories that can be identified as having been acquired [through the email collection program].
On Wednesday's conference call, a government official also said that it decided to make the documents public, but that appears not to be the case with all of them. The release of one ruling stemmed from a lawsuit filed by the Electronic Frontier Foundation last year. As we've reported, the organization went through a lengthy legal struggle with the government after the existence of the ruling was made public. The EFF requested a copy of the ruling under the Freedom of Information Act, first being told by the Department of Justice that it was classified and then, after the EFF sued, that the court wouldn't allow its release. So the EFF asked the court if it could be released; in June, the court agreed to do so, giving the Department of Justice until this month. On Wednesday, the organization declared victory.
October 2011 FISA Court ruling
This article is from the archive of our partner The Wire.