When its vast phone records database on millions of Americans was recently revealed, the National Security Agency defended the program and said its use was tightly regulated. But newly released documents show that the NSA violated the law governing the use of the database for several years—and repeatedly provided the court that oversees the surveillance with false information.
Late Tuesday, the director of national intelligence released the previously secret document trove in what was presented as a demonstration of its renewed commitment to surveillance transparency. In reality, the publication of the files was forced by a combination of FOIA litigation by the Electronic Frontier Foundation and pressure the government has come under following the leak of spying secrets by NSA contractor Edward Snowden. The documents, which number several hundred pages, relate specifically to the NSA’s collection of virtually all domestic phone records on a daily basis, as part of a counterterrorism initiative first publicly disclosed by the Guardian in June after Snowden leaked information.
Among the documents are several highly significant details that reveal the major tensions that have arisen between NSA officials and judges at the secret Foreign Intelligence Surveillance Court. The vast phone records database was first authorized in May 2006. However, in January 2009 the government notified the court that, due to what was presented as a misunderstanding, the NSA had for a period of almost three years been violating the court’s order authorizing the database. Upon learning this, Judge Reggie Walton issued a secret order demanding answers from the government, threatening the possibility of criminal contempt charges for the violation. “The court is exceptionally concerned about what appears to be a flagrant violation of its order,” Walton wrote, adding that the NSA had apparently been using the phone records database in a way that was “directly contrary to the sworn attestations of several executive branch officials.”
The violation apparently stemmed from the NSA’s failure to ensure that all phone numbers it was using to search the database for links to suspected terrorists had met the legal standard set by the court. The agency had set up what it called an “alert list” of thousands of phone numbers and assured the court repeatedly that this list would only include numbers deemed to have a “reasonable articulable suspicion” of a terror link. But by January 2009, the NSA’s alert list contained 17,835 numbers—and only 1,935 of them had been approved under the reasonable articulable suspicion standard. The NSA was forced to temporarily shut down the alert list system after this violation was identified. NSA chief Gen. Keith Alexander told the court in February 2009 the breach occurred because key personnel—apparently including two NSA attorneys and a technical director—did not have a “complete understanding” of how it was operating.
The NSA was also blasted by the court because CIA, FBI, and National Counterterrorism Center analysts gained access to results from the phone records database, in direct breach of a court order issued in 2006 stating that the data should be “stored and processed on a secure private network that NSA exclusively will operate.” Additionally, between December 2008 and January 2009, the NSA acknowledged to the court that two of its spies had used the phone records database to make what it called “improper queries” on 280 occasions. These individuals were apparently shut off from accessing the database, but it is unclear whether they faced disciplinary action or indeed still work for the agency.
Procedures regulating the searches were changed following the revelations about the various violations, and the government continues to insist that the phone records database is vital for detecting terror threats. But the details of the NSA’s unlawful misuse of the controversial initiative will likely add to the mounting support for reform to the program, which a number of members of Congress are aiming to shut down. The disclosures also confound earlier document releases and news reports that have revealed similar cases in which the NSA has misused its surveillance authority and provided the secret surveillance court with false information. An 85-page court ruling from 2011, published in August for the first time, showed the court complaining about being repeatedly misled regarding the scope of a powerful Internet surveillance initiative, which had involved the government unlawfully collecting “tens of thousands” of emails from individuals with no connection to terrorism.