WASHINGTON — The Obama administration has given up more of its surveillance secrets, acknowledging that it was ordered to stop scooping up thousands of Internet communications from Americans with no connection to terrorism — a practice it says was an unintended consequence when it gathered bundles of Internet traffic connected to terror suspects.
One of the documents that intelligence officials released Wednesday came because a court ordered the National Security Agency to do so. But it’s also part of the administration’s response to the leaks by analyst-turned-fugitive Edward Snowden, who revealed that the NSA’s spying programs went further and gathered millions more communications than most Americans realized.
The NSA declassified three secret court opinions showing how it revealed to the Foreign Intelligence Surveillance Court that one of its surveillance programs may have collected and stored as many as 56,000 emails and other communications by ordinary Americans annually over three years. The court ruled the NSA actions unconstitutional and ordered the agency to fix the problem, which it did by creating new technology to filter out buckets of data most likely to contain U.S. emails, and then limit the access to that data.
The director of national intelligence, James Clapper, released the information Wednesday “in the interest of increased transparency,” and as directed by President Barack Obama in June, according to a statement accompanying the online documents.
But it wasn’t until the Electronic Freedom Foundation, an Internet civil liberties group that sued for the release of one of the documents, disclosed the court order that Obama administration officials also acknowledged that the release was prodded by the group’s 2012 lawsuit.
The court opinions show that when the NSA reported its inadvertent gathering of American-based Internet traffic in September 2011, the Foreign Intelligence Surveillance Court ordered the agency to find ways to limit what it collects and how long it keeps the material.
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.
Bates wrote that the NSA had advised the court that “the volume and nature of the information it had been collecting is fundamentally different than what the court had been led to believe,” and went on to say the court must consider “whether targeting and minimization procedures comport with the Fourth Amendment” prohibition against unreasonable search and seizure.
“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 added in a footnoted passage that had portions heavily blacked out.
Bates also complained that the government’s submissions make clear that the NSA was gathering Internet data years before it was authorized by the USA Patriot Act’s Section 702 in 2008.
The NSA had moved to revise its Internet surveillance in an effort to separate out domestic data from its foreign targeted metadata. But in his October 2011 ruling, Bates said the government’s “upstream” collection of data — taken from internal U.S. data sources — was unconstitutional.