An 85-page once-secret court ruling released publicly Wednesday revealed that intelligence authorities unlawfully collected the e-mail communication of tens of thousands of Americans over several years, violating constitutionally protected privacy interests.
The advocacy group Electronic Frontier Foundation sued to obtain a copy of the Foreign Intelligence Surveillance Court ruling, which was issued in October 2011. The Obama administration, having pledged recently to declassify and publish select opinions of the court and other National Security Agency information, posted online a redacted version.
The opinion, written by U.S. District Judge John Bates, the presiding FISA court judge at the time, addresses the government's collection of "upstream" Internet transactions—data that's being transmitted—that contained "multiple communications." The government contends it was unable then—and still is unable now—to segregate domestic e-mail communication of Americans from that of foreign targets of surveillance.
"The court is troubled that the government's revelation 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 wrote.
The surveillance court in March 2009, for instance, concluded that its authorization of the government's bulk collection of telephone call records—Bates called this the "big business records" matter—was based on a "flawed depiction" of how the authorities were using the acquired information.
Bates said the unlawful data collection implicated criminal law statutes—federal law makes it a crime to conduct "electronic surveillance under color of law except as authorized." The court, last year, in a separate ruling that was released to the public Wednesday, said that the issues the unlawful collection raised "have been resolved." Bates pointed to the NSA's "subsequent purge of that collection from its repositories" and the amended minimization procedures that were put into place.
The NSA, amid ongoing self-review in concert with other agencies, including the U.S. Justice Department, said it discovered the data filter problem and alerted the surveillance court.
Intelligence officials, speaking with reporters Wednesday, said the violation that was disclosed to the surveillance court did not mark government surveillance overreach but, rather, the technical inability to filter non-target data from bundled, legitimately collected communication. The officials said the government's collection of Americans' communication was inadvertent.
"There are surely circumstances in which incidental intrusions can be so substantial as to render a search or seizure unreasonable," Bates wrote in the October 2011 surveillance court opinion.
Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said the disclosure of the intelligence court opinions Wednesday "begins to appropriately draw back the curtain on the secret law of government surveillance, and they also underscore the need for increased oversight and stronger protections for Americans' privacy."
After EFF attorneys sued in U.S. District Court for the District of Columbia to obtain the October 2011 opinion, the Justice Department resisted public disclosure. DOJ lawyers made a variety of arguments, including the contention that the presiding U.S. district judge, Amy Berman Jackson, could not compel the government to release the surveillance court ruling.
"The government has determined that disclosure of the information withheld from plaintiff could result in exceptionally grave and serious damage to the national security," DOJ lawyer Jacqueline Coleman Snead, wrote in court papers earlier this year.
EFF said Wednesday that the "release of the opinion today is just one step in advancing a public debate on the scope and legality of the NSA's domestic surveillance programs."
Amid the national dialogue over the scope and lawfulness of government surveillance programs, following leaks to the press about the NSA's bulk collection of data, top Obama administration officials said a review was underway to declassify and publish more documents about government monitoring of Internet and telephone communication.
Lawyers for Google and Microsoft have asked the surveillance court for permission to disclose aggregate data it gave to the government under court orders. The Justice Department said it is continuing talks with the companies over their requests.
"I’m comfortable that if the American people examined exactly what was taking place, how it was being used, what the safeguards were, that they would say, you know what, these folks are following the law and doing what they say they’re doing," Obama said at the White House on August 9.
Contact Mike Scarcella at firstname.lastname@example.org.