Privacy Outrage: Judge Says NSA Misled Court on Domestic Spying

The National Security Agency collected tens of thousands of “wholly domestic” electronic communications and misled the federal court designed to provide oversight of its surveillance programs, according to a 2011 court opinion released Wednesday. In it, chief judge John D. Bates of the Foreign Intelligence Surveillance Court (FISC) repeatedly chastised the agency for “inaccurate” statements, misleading or incomplete filings and for having “circumvented the spirit” of laws protecting Americans’ privacy.

The opinion, previously classified, was released by the Justice Department after a 2-year Freedom of Information Act lawsuit battle initiated by the Electronic Frontier Foundation.

Ultimately, the court ruled that changes to NSA procedures would bring the data surveillance program into compliance. But NSA critics now can point to a court opinion that repeatedly chastises the NSA and other federal agencies for over-reaching and skirting laws designed to balance the government’s need to investigate, bolstering their argument that oversight of NSA electronic surveillance is inadequate.

Sen. Ron Wyden (D-Ore.) said release of the court ruling was “long overdue.”

“The very collection it describes was a serious violation of the 4^th Amendment and demonstrates even more clearly the need to close the back-door searches loophole that allows for the communications of Americans to be searched without a warrant,” Wyden said in a statement. “This ruling makes it clear that (the law permitting foreign electronic surveillance), as written, is insufficient to adequately protect the civil liberties and privacy rights of law-abiding Americans and should be reformed.”

Why All the Outrage?

NSA surveillance is supposed to be limited to foreigners when they are overseas, and the agency is supposed to employ rigorous “minimization procedures” to prevent even accidental copying and storage of the content of “wholly domestic” communications. In both the case before FISC and in conversations with reporters this week, federal officials describe the collection of Americans’ data as the result of technical glitches.

“This was not in any respect an intentional or wholesale breach of privacy of American persons,” Robert S. Litt III, the general counsel for the Office of the Director of National Intelligence, told the Washington Post.

But Judge Bates didn’t see it that way.

“There is no question that the government is knowingly acquiring Internet transactions that contain wholly domestic communications. … By expanding its …acquisitions…NSA has, as a practical matter, circumvented the spirit (of the law),” Bates wrote.

The Electronic Frontier Foundation declared the declassification of the ruling a victory, but also said it points to a need for surveillance oversight reform.

“This opinion illustrates that the way the court is structured now it cannot serve as an effective check on the NSA because it’s wholly dependent on the representations that the NSA makes to it,” the EFF’s Mark Rumold told the New York Times. “It has no ability to investigate. And it’s clear that the NSA representations have not been entirely candid to the court.”

In the heavily redacted ruling released by the Department of Justice, the court notes that the NSA acquires “250 million Internet communications each year.” Despite prior assurances to the court that technology keeps the program on the right side of the law by limiting the collection of data to non U.S. persons outside the country, “tens of thousands of wholly domestic communications” were caught up in the digital dragnet.

In many places, Judge John Bates, who signed the opinion, sounds exasperated. Here are a few of the choice quotes from the opinion:

“The court is troubled that the government’s revelations regarding the 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.”

“In March 2009, the court concluded that its authorization of NSA’s bulk acquisition of telephone call detail records from [redacted] in the so-called ‘big business records’ matter ‘ha(d) been premised on a flawed depiction of how the NSA uses (the acquired) metadata,; and that this misperception (by the FISA court) existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions….”

“Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata used querying terms that did not meet the required standard for querying. The court concluded that this requirement had been so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.”

“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.”

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