Secret Court: NSA Surveillance Program Was Unconstitutional

Aug 21, 2013
Originally published on August 26, 2013 8:53 am

A secret federal court found that the National Security Agency violated the civil rights of Americans when it collected thousands of emails and other digital messages between Americans, according to a 2011 opinion released Wednesday.

The FISA court ruled parts of the program to be unconstitutional and ordered them to be revised. The government made changes and the court signed off on the program in November of 2011.

The release of a key opinion from October 2011 (pdf) and other documents was authorized today by Director of National Intelligence James Clapper, in response to requests from privacy advocates.

In the opinion written by Judge John D. Bates of the Foreign Intelligence Surveillance Court, he also says the government misrepresented its surveillance efforts at least three times from 2008 to 2011. Bates writes that the government first revealed its surveillance program to the court in 2011, but it had been collecting Internet data since at least 2008.

As The Washington Post reports U.S. intelligence officials who spoke about the release Wednesday "stressed that it was the NSA that brought the collection method to the court's attention as part of its regular reporting process."

They noted that the plan had been to store large amounts of material temporarily, to allow the inspection of foreign communications. "But in practice, the NSA was unable to filter out the communications between Americans," The Post reports.

The collection method in question was an "upstream" program, which drew data from fiber-optic networks that funnel a large portion of Internet and phone data. The opinion is not related to other surveillance programs that have garnered attention recently, such as PRISM or the bulk collection of telephone metadata.

In the opinion from late 2011, Bates notes that based on the government's initial plans and explanations, "the Court understood that the acquisition of Internet communications ... would be limited to discrete 'to/from' communications between or among individual account users and to 'about' communications."

He states that the "revelation fundamentally alters" the understanding of the operations' scope.

And in a footnote to this section of the opinion, Bates writes that this isn't the first time the federal government has misrepresented its actions:

"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 this instance, Bates wrote, "the quantity of incidentally-acquired, non-target, protected communications being acquired by NSA through its upstream collection is, in absolute terms, very large, and the resulting intrusion is, in each instance, likewise very substantial."

Elsewhere, he calls the NSA's upstream collection "a small, but unique part" of the government's overall efforts that "acquires valuable information... but not without substantial intrusions on Fourth Amendment-protected interests."

The 2011 opinion concludes that the "NSA's targeting and minimization procedures, as the government proposes to apply them ... are inconsistent with the requirements of the Fourth Amendment."

The release comes nearly a year after the EFF announced that it was filing a Freedom of Information Act (FOIA) lawsuit against the Justice Department seeking "any written opinions or orders from FISC discussing illegal government surveillance, as well as any briefings to Congress about those violations."

In court papers filed earlier this month, the Justice Department said it would give the EFF "a redacted version of the Foreign Intelligence Surveillance Court ('FISC') opinion," along with "a redacted version of the one responsive paragraph in the classified white paper to Congress also previously withheld" in accordance with FOIA exemptions.

The existence of the October 2011 secret court opinion — and the belief that it found some actions by the NSA to be unconstitutional — became public knowledge after it was discussed in a letter written by a government official to Sen. Ron Wyden (D-Ore.), the EFF says.

The release of the documents today comes a week after reports that the NSA broke U.S. privacy rules "thousands of times each year" since 2008, when Congress broadened the agency's powers. Those findings were part of an internal audit at the NSA, as Mark reported.

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