This article, written by Electronic Frontier Foundation staff attorney Mark Rumold, was originally published on the Foundation’s website.
The government released a second batch of documents yesterday in response to EFF’s ongoing FOIA lawsuit for information concerning Section 215 of the Patriot Act — the provision of law the government relies on to compel the disclosure of records of millions of Americans’ calls.
One document, in particular, confirms what in recent months has become abundantly clear: the NSA is unwilling to submit to meaningful and effective oversight and seems unwilling to recognize the extraordinarily sensitive nature of the information it collects.
The document, which appears to be a written response to an Intelligence Committee staffer’s question, describes the NSA’s acquisition and testing of Americans’ cell site location data. The document shows that, prior to obtaining and testing samples of location information taken from Americans’ cell phone calls, the NSA didn’t even bother to inform the Foreign Intelligence Surveillance Court (FISC) or the relevant Congressional oversight bodies prior to doing so. In fact, neither NSA nor the National Security Division of the Department of Justice thought the collection of Americans’ location information sufficiently novel or important to even justify an individualized legal analysis. In the view of DOJ, the location information of thousands (or millions) of Americans could just be lumped in with the information the FISC had already approved for collection.
Keep this in mind, too: approximately a year prior, the FISC nearly shut down the call record program after the agency repeatedly misled the court about how and under what circumstances it was accessing Americans’ call records. To then obtain extraordinarily sensitive information about the movements of Americans — without first informing either the FISC or any of NSA’s Congressional oversight bodies — smacks of a fundamental disregard for the NSA’s oversight system and the coordinate branches of government.
It’s time to put an end to the agency’s “collect first, seek authorization later” mentality. The NSA needs to recognize, once and for all, that it is not above the law. When an agency acts without oversight or the authorization of Congress, the judiciary, or even the President, it’s clear that the agency has gone off the rails. We need a full and public investigation of the NSA’s spying activities, and members of the intelligence community should be held accountable.