For months, the Obama administration fought to prevent the release of details about unlawful NSA surveillance of Americans. But now it has finally caved—publishing a startling secret court opinion that slams the NSA for illegally obtaining thousands of domestic emails sent to and from people with no link to terrorism.
Prior to the leaks of secret documents by former NSA contractor Edward Snowden, the existence of the classified opinion had been revealed by Sen. Ron Wyden, D-Ore. This prompted rights group the Electronic Frontier Foundation to pursue Freedom of Information Act litigation to obtain the opinion, which the Justice Department fought aggressively in the courts, as I reported here back in May. The DOJ argued that the release of the material would pose “exceptionally grave and serious damage” to national security.
However, the administration has been under extreme pressure to embrace greater transparency on surveillance since Snowden’s leaks, and the DOJ faced a severe setback in June when a court ruling effectively gave it little option but to publish some of the details. Consequently, the administration finally decided to release a declassified version of the Foreign Intelligence Surveillance Court opinion Wednesday, swiftly undermining previous claims that it needed to stay secret.
Far from being sensitive on national security grounds, it appears likely that the opinion was previously withheld only because it could have been perceived as politically damaging. In the 85-page ruling, FISA court judge John Bates blasts the government for withholding key information about a program involving the mass sifting of data about emails and other Internet communications directly off of Internet cables. Bates found that the NSA was “likely acquiring tens of thousands of discrete communications of non-target United States persons and persons in the United States,” violating Fourth Amendment protections against unreasonable searches and seizures. And the judge noted that it wasn’t the first time that the secret court was misled about the scope of NSA surveillance:
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.
The opinion makes clear that the NSA began collecting the data from the Internet cables as part of an “upstream” collection program before 2008, likely first initiated as part of the Bush administration’s so-called warrantless wiretapping program. The surveillance apparently continued without the FISA court’s full knowledge and authorization until 2011, which suggests a criminal violation of the law may have occurred, according Bates’ assessment. The government apparently claimed that it was intercepting thousands of Americans’ emails because technical issues and mistakes meant that it was unable to distinguish them from the lawfully monitored communications of suspected terrorists and other foreign targets. However, the FISA court dismissed this, saying that there was “nothing in the record to suggest that NSA's technical means are malfunctioning or otherwise failing to operate as designed.”
Part of the problem appears to have been that the NSA was targeting not only specific individuals, but anyone mentioning those specific individuals, inevitably sweeping up troves of innocent citizens’ communications as a result.
The opinion also reveals that during one six-month period, the NSA acquired some 13 million “internet transactions,” unlawfully gathering “tens of thousands of wholly domestic communications” each year without any search warrant. Interestingly, the upstream monitoring was said to account for only 9 percent of the NSA’s surveillance of Internet communications under the Foreign Intelligence Surveillance Act, with the rest apparently coming from data obtained directly from companies.
Other FISA court documents declassified Wednesday show that following the 2011 ruling, the NSA was told to make changes to how it collected upstream data. The government agreed to new “segregation” protocols to remove communications collected “inadvertently” from non-targeted Americans from its databases. And the time the NSA was allowed to retain this information was reduced from five years to two.
In June, the Obama administration told the Guardian that the bulk collection of domestic Internet communications was “discontinued” for operational and procedural reasons. However, it now seems clear that the program was not halted at all; instead, it was simply reformed after the 2011 opinion was handed down. As the Wall Street Journal reported this week, the NSA currently boasts the capacity to sift through 75 percent of all U.S. Internet traffic, and continues to collect upstream data from more than a dozen secret traffic “filtering” locations across the country.