This post, written by EFF staff attorney Mark Rumold, originally appeared on the foundation’s website on Nov. 20.
Documents released Monday by the Director of National Intelligence tell a story we’ve heard before: The government, through one-sided argument in a secret court, obtained unConstitutional orders to collect vast amounts of information about millions of innocent Americans.
Before, it was Americans’ call records; the opinions released today describe the National Security Agency’s program collecting Americans’ Internet communications. And, just as we saw with the government’s bulk collection of calling records, what the Foreign Intelligence Surveillance Act court envisioned to be a closely controlled Internet metadata program quickly resulted in violations of its orders and restrictions, the search and collection of more information than the government was authorized to acquire, and repeated violations of the privacy of millions of Americans.
Here are some snippets, taken from the opinions and orders of the FISA court, describing the government’s repeated operation of the programs in violation of its orders:
Opinion of the FISC (pages 21-22)
Notwithstanding this and many similar prior representations, there in fact had been systemic overcollection since [redacted]. On [redacted] the government provided written notice of yet another form of substantial non-compliance discovered by NSA OGC. . . This overcollection, which had occurred continuously since the initial authorization . . . , included the acquisition of [redacted]. . . The government later advised that this continuous overcollection acquired many other types of data and that “[v]irtually every PR/TT record” generated by this program included some data that had not been authorized for collection.
Opinion of the FISC (page 4)
The current application relies on this prior framework, but also seeks to expand authorization in ways that tests the limits of what the applicable FISA provisions will bear. It also raises issues that are closely related to serious compliance problems that have characterized the government’s implementation of prior FISC orders. It is therefore helpful at the outset to summarize both the underlying rationale of the prior authorizations and the government’s frequent failures to comply with their terms.
Order and Supplemental Order of the FISC (pages 6) (emphasis in original)
Given the apparent widespread disregard of [FISC imposed] restrictions, it seems clear that NSA’s Office of General Counsel has failed to satisfy its obligation to ensure that all analysts with access to information derived from the PT/TT metadata ‘recieve appropriate training and guidance regarding the querying standard set out in paragraph c. above, as well other procedures and restrictions regarding the retrieval, storage, and dissemination, of such information
Order and Supplemental Order of the FISC (pages 6 -7)
The Court is also seriously concerned regarding NSA’s placement of unminimized metadata from both the above-captioned matters into databases accessible by outside agencies, which, as the government has acknowledged, violates not only the Court’s orders, but also NSA’s minimization and dissemination procedures set forth in USSID 18.
The Electronic Frontier Foundation just begun digesting the documents released Monday and will provide more analysis in the coming days. But EFF hopes these disclosures will provide more evidence, if any more was needed, of the need for serious and comprehensive FISA reform.