NSA gathered thousands of Americans’ e-mails before court ordered it to revise its tactics[Note: to the best of my knowledge, Judge Bates is not related to me. - SB]
By Ellen Nakashima, Published: August 21 [Washington Post]
For several years, the National Security Agency unlawfully gathered tens of thousands of e-mails and other electronic communications between Americans as part of a now-revised collection method, according to a 2011 secret court opinion.
The redacted 85-page opinion, which was declassified by U.S. intelligence officials on Wednesday, states that, based on NSA estimates, the spy agency may have been collecting as many as 56,000 “wholly domestic” communications each year.
In a strongly worded opinion, the chief judge of the Foreign Intelligence Surveillance Court expressed consternation at what he saw as a pattern of misleading statements by the government and hinted that the NSA possibly violated a criminal law against spying on Americans.
“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” John D. Bates, then the surveillance court’s chief judge, wrote in his Oct. 3, 2011, opinion.
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What is wrong with this picture?
Secret Court Faulted NSA for Collecting Domestic Data
ReplyDeletehttp://online.wsj.com/article/SB10001424127887323665504579027180087675564.html (I have managed to copy this from WSJ, now probably inaccessible)
Spy Agency Violated Constitution for Three Years, According to 2011 Ruling
By SIOBHAN GORMAN , DEVLIN BARRETT and JENNIFER VALENTINO-DEVRIES
WASHINGTON—The National Security Agency violated the Constitution for three years by collecting tens of thousands of purely domestic communications without sufficient privacy protection, according to a secret national-security court ruling.
In the strongly worded 2011 ruling, released Wednesday by the Obama administration, the court criticized the NSA for misrepresenting its practices to the court. It noted that the illegal collection was the third instance in less than three years in which the government made a "substantial misrepresentation regarding the scope of a major collection program," specifically how the NSA collected Internet communications and phone data.
The court ruling includes estimates suggesting the NSA collected as many as 56,000 purely domestic communications a year.
Robert Litt, general counsel for the Office of the Director of National Intelligence, said Wednesday that the illegal collection stemmed from a technological problem the NSA itself uncovered, and that it wasn't an intentional effort to collect American communications.
To fix the problem, the NSA devised a new set of procedures for handling the Internet traffic in question. It also purged its databases of all the data—domestic and foreign—collected under those programs during the three years of unlawful collection, according to a senior intelligence official.
The NSA discovered the issue in 2011 and reported it to the Foreign Intelligence Surveillance Court that oversees NSA collection. The court ruled the NSA's Internet spy program was "in some respects, deficient on statutory and constitutional grounds."
..
Mr. Litt, of the Office of the Director of National Intelligence, said the fact that NSA caught the issue, reported it and engaged with the court to remedy it showed there is "robust, vigorous, multilayered oversight" of these spy activities. He said in 2009 NSA moved to improve its ability to detect mistakes when it added a compliance officer and expanded its compliance staff to more than 300.
Because the NSA manages so many people and such volumes of data, Mr. Litt said, "there are going to be mistakes and errors from time to time," and there is a system in place to minimize mistakes as well as to identify, report and fix them.
Still, the rulings show the extent of the court's frustration with the NSA's handling of the collection programs. Judge John Bates found that the size and nature of the privacy intrusion were "substantial."..
Some Republicans also said the administration needed to provide more complete explanations of NSA spy programs. Sen. Bob Corker (R., Tenn.), the top Republican on the Senate Foreign Relations Committee, wrote to President Barack Obama asking for the NSA director to provide Congress with "full accounting of the totality" of NSA surveillance programs.
Civil libertarians called on Congress to curb NSA surveillance. The court rulings show "how incredibly permissive our surveillance laws are, allowing the NSA to conduct wholesale surveillance of Americans' communications under the banner of foreign intelligence collection," said Jameel Jaffer, legal director for the American Civil Liberties Union. "This kind of surveillance is unconstitutional, and Americans should make it very clear to their representatives that they will not tolerate it."
Write to Siobhan Gorman at siobhan.gorman@wsj.com, Devlin Barrett at devlin.barrett@wsj.com and Jennifer Valentino-DeVries at Jennifer.Valentino-DeVries@wsj.com
A "technological problem the NSA itself uncovered"? It "wasn't an intentional effort to collect American communications"? Oh, come f'ing on! As the old, sarcastic reply has it, "Pull the other one!" Like hell it wasn't intentional!
DeleteThanks, Enfant, for the WSJ report, more compact than the WaPo. The ACLU is absolutely correct about this action: it is unconstitutional on the part of the NSA. Not that we can expect anyone to be held accountable, or that the data collection will ever actually be brought to a halt...
If our current younger generation of Americans were at all inclined to read sociopolitical fiction, we would see an increase in sales of Orwell's 1984. If no one else saw the increase, the NSA would surely notice it. Grrrr!
A s I could not put the entire article, I have some more fragments. Thus you have the whole:
DeleteThe once-secret order provided the clearest evidence yet of problems with the extensive interception network the NSA has created in the U.S., and further raises the prospects Congress may intervene to put new limits on NSA surveillance programs. It also provided an unusual behind-the-scenes peek at the interaction between America's spies and its secret judicial overseers, one of the few internal checks on the NSA's operations. ...
On Wednesday, The Wall Street Journal reported new details about the NSA's domestic Internet surveillance system, which it uses to hunt for foreign intelligence. Through relationships with telecommunications companies, the NSA's system covers roughly 75% of U.S. Internet communications.
The companies send the NSA streams of data from their networks likely to contain foreign intelligence, including the contents of communications it gets from intercepts at key U.S. Internet nodes. The NSA then sifts that data based on its search criteria. The companies must provide whatever the NSA requests, as approved by a broad order from the secret court.
As part of that collection system, the NSA inevitably picks up purely domestic communications, because so much overseas and U.S. traffic is commingled in the same fiber-optic cables and other communications lines. ..
What prompted the court's rebuke was the NSA's practice of retaining entire bundles of communications trapped by the system described by the Journal, even if it needed only one particular instance. Officials gave the example of a screen shot of emails that appear on a Web page, which could be sucked into the system even if they wanted only one message.
As a result, from 2008 to 2011 the NSA collected communications that included purely domestic ones and didn't take sufficient measures to protect the privacy of those individuals, the 2011 opinion found.
The NSA discovered the issue in 2011 and reported it to the Foreign Intelligence Surveillance Court that oversees NSA collection. The court ruled the NSA's Internet spy program was "in some respects, deficient on statutory and constitutional grounds."
The NSA worked with the court to bolster the safeguards for Americans' communications, and the collection continues today under these enhanced protections. That means the NSA still obtains many purely domestic communications, but handles them with greater care....
...What prompted the court's rebuke was the NSA's practice of retaining entire bundles of communications trapped by the system described by the Journal, even if it needed only one particular instance. Officials gave the example of a screen shot of emails that appear on a Web page, which could be sucked into the system even if they wanted only one message.
DeleteAs a result, from 2008 to 2011 the NSA collected communications that included purely domestic ones and didn't take sufficient measures to protect the privacy of those individuals, the 2011 opinion found.
One opinion, from October 2011, sharply criticizes the government's rationale that unintentional collection of Americans' data is simply a failure of their technical abilities. "When the collection device acquires such a transaction, it is functioning precisely as it is intended, even when the transaction includes a wholly domestic communication."
.....
The court also faulted the NSA's initial proposal to fix the problem, saying that rather than minimize or destroy any data collected about Americans, the agency's plan "tends to maximize the retention of such information, including information of or concerning United States persons with no direct connection to any target."
The court also faulted the NSA for not exploring other ways to reduce the amount of domestic communications it collects.
"The government has failed to demonstrate that it has struck a reasonable balance between its foreign intelligence needs and the requirement that information concerning United States persons be protected," wrote Judge Bates.
Under the statute, the government was allowed to continue the collection that the judge had found unconstitutional for 30 days, while it worked to improve its collection process, according to another court document written by the judge.
The government still faced another problem: what to do with all the communications it had already gathered in previous years that contained wholly domestic messages. It purged the data wherever it could be found.
In November 2011, the court ruled that the new collection restrictions corrected the problems, and Judge Bates reaffirmed that finding a year later.
"Taken together, the remedial steps taken by the government since October 2011 greatly reduce the risk that NSA will run afoul'' of the surveillance law, he wrote in September 2012.
The documents also hinted at the relative value of some of the NSA's intelligence programs. While the NSA's intercept programs cast a wide net across the U.S. communications, the amount of communications the NSA ultimately keeps through this method is relatively small—around 25 million a year out of 250 million Internet communications collected.
In July 2012, Sen. Ron Wyden (D., Ore.) persuaded the Director of National Intelligence to declassify the fact that NSA had violated the Fourth Amendment, which prohibits unreasonable searches, at least once. On Wednesday, officials said this violation was the one Mr. Wyden had been concerned about.
While Mr. Wyden commended the additional disclosures, he said the episode was further evidence that current surveillance law "is insufficient to adequately protect the civil liberties and privacy rights of law-abiding Americans and should be reformed."
On the House side, Reps. John Conyers Jr. (D., Mich.), Jerrold Nadler (D., N.Y.) and Robert Scott (D., Va.) said in a joint statement that Congress needs to respond to the disclosures about privacy violations and the broad surveillance infrastructure the NSA has assembled in the U.S. They called for congressional action to limit some NSA programs and improve oversight.
You may assembly the parts.
Thanks
Dr Paul Craig Roberts, Gangster State US/UK, Aug 22, 2013
ReplyDeletehttp://www.prisonplanet.com/gangster-state-usuk.html
This was just a selective release. We don't know if there were other opinions that made similar findings after this one, or if the NSA did something different as a result of this opinion and then the FISA court endorsed whatever they did, or whether this is one of many times that that FISA court slammed the NSA over something like this, or whether this was an outlier decision and most FISA judges don't care if the NSA oversteps.
ReplyDeleteThe point of the release seems to be to counter the narrative that the FISA court is merely a rubber stamp, and to undermine the push to create more of a check on the NSA. But from this opinion alone we can't tell how much of a check it really is.
'noz, I guess my question is much more fundamental than any of those secret particulars: can the US Constitution accommodate a "secret court" (how I detest that phrase!) without shredding the very fabric of American jurisprudence? My first inclination is to answer, not just no, but hell no.
ReplyDeleteAmerica survived the first approximately three-quarters of its lifetime without an NSA, and almost all of its lifetime without a FISA court and the notion of secret rulings in which not only the hearings, indeed not only the rulings, but the very fact that a case was heard is typically secret. There are two things I cannot bring myself to believe: one, that such secret actions are necessary to America's continued survival, and two, that they are in any way compatible, let alone consonant, with the spirit of American justice. Secret courts ruling on secret matters are the stuff of the old Soviet Union, or Nazi Germany.
In fewer words: it is not that the FISA court is "merely a rubber stamp"; it is that the FISA court exists at all and dispenses secret justice, that I object to so vociferously.
Next, I just know, someone will tell me that it's a choice between a FISA court and no court at all, between secret supervision of intelligence agencies and no supervision of intelligence agencies. To which I can only point and answer, "BULLSHIT! BULLSHIT! BULLSHIT!" If that were true, how did America survive so long before it deployed both the plethora of three-letter agencies out there today, and the FISA court to watch them? How in the world did our nation survive this far if that's the choice we're faced with, and for a century and a half we chose not to make the choice? Bullshit, I say!
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