WASHINGTON – The National Security Agency declassified three secret court opinions Wednesday showing how in one of its surveillance programs it scooped up as many as 56,000 emails and other communications by Americans not connected to terrorism annually over three years, revealed the error to the court – which ruled its actions unconstitutional – and then fixed the problem.
Director of National Intelligence James Clapper authorized the release, part of which Obama administration officials acknowledged Wednesday was prodded by a 2011 lawsuit filed by an Internet civil liberties activist group.
The court opinions show that when the NSA reported its inadvertent gathering of American-based Internet traffic to the court in September 2011, the Foreign Intelligence Surveillance Court ordered the agency to find ways to limit what it collects and how long it keeps it.
In an 85-page declassified FISA court ruling from October 2011, U.S. District Judge James D. Bates rebuked government lawyers for repeatedly misrepresenting the operations of the NSA’s surveillance programs.
“This 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 footnoted passage that had portions heavily blacked out in the government’s disclosure.
The NSA had moved to revise its Internet surveillance in an effort to separate domestic data from its foreign targeted metadata – which includes email addresses and subject lines. But in his October 2011 ruling, Bates ruled that the government’s “upstream” collection of data – taken from internal U.S. data sources – was unconstitutional.
Three senior U.S. intelligence officials said Wednesday that national security officials realized the extent of the NSA’s inadvertent collection of Americans’ data from fiber optic cables in September 2011. One of the officials said the problem became apparent during internal discussions between NSA and Justice Department officials about the program’s technical operation.
“They were having a discussion and a light bulb went on,” the official said.
The problem, according to the officials, was that the top-secret Internet-sweeping operation, which was targeting metadata contained in the emails of foreign users, was also amassing thousands of emails that were bundled up with the targeted materials. Because many Web mail services use such bundled transmissions, the official said, it was impossible to collect the targeted materials without also sweeping up data from innocent domestic U.S. users.
The officials did not explain why they did not prepare for that possibility when the surveillance program was created and why they discovered it only after the program was well underway.
Officials said that when they realized they had an American communication, the communication was destroyed. But it was not clear how they determined to whom an email belonged and whether any NSA analyst had actually read the content of the email. The officials said the bulk of the information was never accessed or analyzed.