In recent months, the Justice Department has been trying to keep secret a court opinion that outlines the NSA’s unlawful surveillance of Americans. But now, newly leaked documents have provided the first public details of the classified ruling.
On Thursday, the Washington Post published a new scoop sourced from the trove of secret files turned over by former NSA contractor Edward Snowden. The Post’s report outlines how the spy agency has breached privacy rules thousands of times per year since 2008, in one case snooping on calls made in Washington after the U.S. area code 202 was mistakenly used instead of 20, Egypt’s international dialling code.
Notably, the Post also published an NSA summary of a highly significant classified court opinion, handed down by the secret Foreign Intelligence Surveillance Court. The summary outlines how NSA snooping on data collected as part of its “upstream” surveillance programs was deemed “deficient on statutory and constitutional grounds,” providing what is the first direct evidence of unlawful NSA spying on Americans in the trove of secrets spilled by Snowden.
Upstream collection involves lifting data directly from the fiber optic cables that make up the backbone of the Internet. The confirmation that the unlawful surveillance was linked to this kind of monitoring is a particularly interesting detail, raising questions about possibly misleading statements made by Obama administration officials. Back in June, the Guardian revealed that the NSA collected email records of Americans in bulk, presumably mining the data off of networks as part of the upstream program. This operation was shut down by the Obama administration in 2011—the same year the court opinion ruled the upstream collection unconstitutional. Shawn Turner, the Obama administration's director of communications for National Intelligence, claimed to the Guardian that the program was stopped for “operational and resource reasons.” But that may not have been the full truth. It seems possible the program was in fact shut down because the FISA court deemed it unlawful.
The existence of this opinion was first disclosed last year by Sen. Ron Wyden, D-Ore., who said that he knew of at least one secret court opinion outlining how the NSA had circumvented the Foreign Intelligence Surveillance Act. Wyden’s statement prompted rights group the Electronic Frontier Foundation to launch a Freedom of Information Act lawsuit to obtain a copy of the opinion. The government has been fighting to stop its release, and was dealt a blow in June when a FISA court ruling pushed it one step closer to having to publish some of the details.
Aside from the important new information about the 2011 court opinion, the latest Post scoop also details previously undisclosed NSA rule-breaking. In one “incident” in 2012, according to the newspaper, the NSA unlawfully retained 3,032 files that it had been ordered by the FISA court to destroy. In addition, a May 2012 internal NSA audit counted 2,776 incidents in the preceding 12 months of unauthorized collection, storage, access to or distribution of legally protected communications.
Errors such as this—witting or unwitting—are an inevitable part of any surveillance operation. In the United Kingdom, for instance, a selection of spying “mistakes” conducted by security and police agencies are documented annually in an oversight report. But given that the NSA reportedly intercepts a massive 1.7 billion communications every day, it is surprising that internal reports of unlawful surveillance are not far higher. This may be explained in part by the fact that the figures published by the Post account only for incidents at the NSA’s Fort Meade headquarters and other facilities in the Washington area, not its many other regional operating centers that are scattered across the world.
This blog post has been updated with an explanation of "upstream collection."