New Documents Obtained By Electronic Frontier Foundation Confirm: NSA Collects First, Seeks Authorization Later

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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.

Personal Liberty

Electronic Frontier Foundation

From the Internet to the iPod, technologies are transforming our society and empowering us as speakers, citizens, creators, and consumers. When our freedoms in the networked world come under attack, the Electronic Frontier Foundation (EFF) is the first line of defense. EFF broke new ground when it was founded in 1990—well before the Internet was on most people's radar—and continues to confront cutting-edge issues defending free speech, privacy, innovation, and consumer rights today. From the beginning, EFF has championed the public interest in every critical battle affecting digital rights. https://www.eff.org/

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  • Sunwukong68

    Scary tactics…sounds strangely like Gestapo tactics…or even KGB. Big Brother is watching, listening, and waiting for the cue to go ahead and arrest us for being different from mainstream Americans. Watch out non-mainstream religious groups…people who look different…people who have relatives in “enemy” countries…and perhaps Americans who practice their First Amendment rights…or any other Constitutionally protected rights.

    • Robert Messmer

      You mean like at Waco?

      • Sunwukong68

        Do we really know what happened at Waco? What were they convicted of? Hmmm…sounds like something Wacko in Waco. Non-mainstream religious groups…did you hear about the guy in Phoenix who was jailed for having Bible studies in his home, back in August of last year? In China, only government approved religious groups are allowed to practice at the official church building. Home churches are all illegal there. We do not need to go that direction.

  • ibn insha

    Government has only claimed that it was able to stop terrorist attacks but gave no evidence of those planned attacks. The only way to control this monster of NSA and other spying agencies is to kill them.

  • Debbie Hogan Tate

    If the NSA is collecting all this info why did they not stop the Boston Bombing or mass school shootings? Where were they, then, with all this info? Why did the bombing happen? They were even warned weeks before it happened! What was the NSA doing since it sure isn’t stopping these attacks?