One of the big talking points from NSA proponents is how the agency’s spy programs are constitutional. That’s debatable and many in Congress feel that the agency has largely overstepped its bounds in the collection of American’s cellphone metadata. Even so, the FISA court that oversees these requests for data largely support the NSA’s activities. There was one brief moment in 2011, however, when the court threw the book at the agency.
In a recently declassified FISA court opinion from May 2011, the government revealed that the NSA was caught to be in violation of the Fourth Amendment by collecting tens of thousands of “wholly domestic” emails. The agency had obtained the emails as part of its Upstream data collection program that taps into the fiber cables that bring data into and out of the U.S.
The NSA defended itself by saying that the collection of domestic emails was an accident as it had no way to filter out domestic from foreign emails with Upstream. Still, the court unhappy as the NSA had not disclosed its gathering of Americans’ emails until long after its capability to do so was approved.
In his opinion, FISA judge John D. Bates said that “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 has been led to believe.” In other words, Bates called the NSA out for misleading the court in regards to its activities.
It was with the revelation that the NSA overstepped its bounds in email collection that the court ordered the Upstream program to be halted immediately until the agency could ensure that its collection of incidental data was within an acceptable range. In November, the court gave upstream the go ahead after the NSA demonstrated its new filtering software that kept the collection of Americans’ emails to a minimum.
It’s worrisome that the NSA is still being allowed to collect emails, but it’s a little better knowing that the FISA court has at least once slapped down a spy program until it had worked in sufficient safeguards. Some, including those in Congress, may argue that it’s not enough, but we’ll leave that debate for another time.
For now, let’s focus on the most worrisome part of the declassified court opinion. In a footnote, Bates says the collection of “wholly domestic” emails as described above was actually the third time in three years that the NSA had overstepped its bounds:
“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.
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 “[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court mandated oversight regime.”
Contrary to the government’s repeated assurances, NSA has been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been “so frequently and systemically violated that it can be fairly said that this critical element of the overall … regime has never functioned effectively.”
All of this may sound familiar if you were paying attention last week when it was revealed that the NSA had violated its own privacy rules over 2,000 times in 2012. In response to that leak, Reggie B. Walton, chief judge on the FISA court, said that the courts hands were essentially tied when it came to investigating issues of noncompliance. In other words, the FISA court has to rely on the NSA to report its own wrongdoings, and the above declassified opinion shows that the agency isn’t too keen on reporting its own violations until well after the fact.
It’s a problem that needs to be addressed, but the president seems to think that making the NSA more transparent (i.e. declassifying two-year-old court opinions) will somehow make the agency more accountable. The government’s own piss poor attempts at transparency should make it clear that timely accountability isn’t coming anytime soon.[h/t: Washington Post]