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NSA Didn’t Tell FISA It Collected Some US Emails

From the Washington Post:

NSA gathered thousands of Americans’ e-mails before court ordered it to revise its tactics

By Ellen Nakashima | August 21, 2013

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…

“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,” Bates wrote in a scathing footnote…

In a nutshell, a 2011 FISA court opinion says that NSA might have collected up to 56,000 domestic emails a year for the several year after their powers were expanded under Section 702 in 2008. But NSA didn’t tell the FISA about it until May 2011.

We are not quite sure what is so outrageous in that. But one of the FISA court judges complained (in a footnote) felt that NSA had mislead the court and violated the Constitution. So maybe there is more here than I am seeing.

The release marks the first time the government has disclosed a FISA court opinion in response to a Freedom of Information Act lawsuit. The lawsuit was brought a year ago by the Electronic Frontier Foundation, a privacy group.

If the Obama administration didn’t want this opinion out, it would not have been declassified. And note that this is the first time a FISA court opinion has ever been declassified and released. Would it be too cynical to suggest that Obama might have decided to ‘declassify it’ now for maximum damage to NSA and our intel agencies in general?

It occurs to me that Obama might have decided to declassify it now for maximum damage to NSA? After all, does anyone really believe Obama would mind if NSA and our other intelligence agencies get destroyed? (Which has always been the goal of the left.) Or is Obama shedding crocodile tears about it, while he is quietly happy as a clam. Is he letting this happen? Is he even encouraging it, behind the scenes?

“It’s unfortunate it took a year of litigation and the most significant leak in American history to finally get them to release this opinion,” said foundation staff attorney Mark Rumold, “but I’m happy that the administration is beginning to take this debate seriously.” …

Don’t worry. They are probably just as happy as you are.

Still, Bates noted that it was not until May 2011 — several years after Section 702 was approved — that the NSA told the court that its upstream collection of Internet communications may contain entire Internet “transactions” not related to the target. In other words, the agency may be collecting e-mails between two Americans or people inside the United States in violation of FISA…

So for three years NSA didn’t tell the FISA court that they may have accidentally been collecting all domestic communications, as well? That is not quite the end of the world in our opinion.

In June 2011, the NSA informed Bates that an Internet transaction may be a single communication or it may include “multiple discrete communications,” including those that are not to, from or about a target. That means instead of one e-mail, a string of Americans’ e-mails could be inadvertently picked up. “That revelation fundamentally alters the Court’s understanding of the scope of the collection conducted pursuant to Section 702,” Bates said.

“By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA has, as a practical matter, circumvented the spirit of [the law],” Bates wrote. “NSA’s knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause of concern for the court.”

He ordered the collection to stop until the NSA could propose an acceptable remedy. In November 2011, Bates signed an order approving the fix, which included a new technical means to segregate transactions most likely to contain U.S. persons’ communications and reducing the retention period from five to two years…

In April 2012, the NSA decided to conduct a purge of all upstream data collected since Section 702’s inception in 2008, senior intelligence officials said. They could not estimate the quantity, but one official said it was “lots.” Said another: “It would have been everything.” …

That is, FISA ordered NSA to tighten their ‘filters.’ And NSA destroyed all the data that had collected in the three previous years. (Which meant quite a loss of intel.)

But what’s the outrage again?

This article was posted by Steve on Thursday, August 22nd, 2013. Comments are currently closed.

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