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NSA collected thousands of U.S. communications
First Published Aug 21 2013 01:40 pm • Last Updated Aug 21 2013 06:08 pm

Washington • The National Security Agency declassified three secret court opinions Wednesday showing how in one of its surveillance programs it scooped up as many as 56,000 emails and other communications by Americans not connected to terrorism annually over three years, revealed the error to the court — which ruled its actions unconstitutional — and then fixed the problem.

Director of National Intelligence James Clapper authorized the release, part of which Obama administration officials acknowledged Wednesday was prodded by a 2011 lawsuit filed by an Internet civil liberties activist group.

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The court opinions show that when the NSA reported its inadvertent gathering of American-based Internet traffic to the court in September 2011, the Foreign Intelligence Surveillance Court ordered the agency to find ways to limit what it collects and how long it keeps it.

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.

"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 wrote in a footnoted passage that had portions heavily blacked out in the government’s disclosure.

The NSA had moved to revise its Internet surveillance in an effort to separate out domestic data from its foreign targeted metadata — which includes email addresses and subject lines. But in his October 2011 ruling, Bates ruled that the government’s "upstream" collection of data — taken from internal U.S. data sources — was unconstitutional.

Three senior U.S. intelligence officials said Wednesday that national security officials realized the extent of the NSA’s inadvertent collection of Americans’ data from fiber optic cables in September 2011. One of the officials said the problem became apparent during internal discussions between NSA and Justice Department officials about the program’s technical operation.

"They were having a discussion and a light bulb went on," the official said.

The problem, according to the officials, was that the top secret Internet-sweeping operation, which was targeting metadata contained in the emails of foreign users, was also amassing thousands of emails that were bundled up with the targeted materials. Because many web mail services use such bundled transmissions, the official said, it was impossible to collect the targeted materials without also sweeping up data from innocent domestic U.S. users.

The officials did not explain why they did not prepare for that possibility when the surveillance program was created and why they discovered it only after the program was well under way.


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Officials said that when they realized they had an American communication, the communication was destroyed. But it was not clear how they determined to whom an email belonged and whether any NSA analyst had actually read the content of the email. The officials said the bulk of the information was never accessed or analyzed.

As soon as the extent of the problem became clear, the officials said, the Obama administration provided classified briefings to both Senate and House intelligence committees within days. At the same time, officials also informed the FISA court, which later issued the three 2011 rulings released Wednesday — with redactions — as part of the government’s latest disclosure of documents.

The officials briefed reporters on condition of anonymity because they were not authorized to describe the program publicly.

The documents were declassified to help the Obama administration explain some of the most recent disclosures made by The Washington Post after it published classified documents provided by former NSA systems analyst Edward Snowden.

One of the intelligence officials briefing reporters said the newly declassified documents should help explain "the reasons why people shouldn’t go into a panic over articles they read in the press."

But the FISA court’s classified rulings have also been at issue in a two-year-old lawsuit filed against the government by the Electronic Frontier Foundation, an Internet civil liberties activist organization. In a decision in June, the FISA court ruled that its authority did not prevent the release of the earlier 2011 opinion.

A senior administration official acknowledged Wednesday that some of the documents released were in response to the lawsuit, while others were released voluntarily. The official insisted on anonymity because he was not authorized to discuss the release with a reporter by name.

The release Wednesday of the FISA opinion, two other 2011 rulings and a secret "white paper" on the NSA’s surveillance came less than two weeks after a federal judge in Washington gave government lawyers a time extension in order to decide which materials to declassify. The EFF had been pressing for a summary judgment that would have compelled the government to release the secret FISA rulings, and the government’s most recent extension expired Wednesday, the day it released the once-secret FISA court rulings.

"This was all released in response to the court’s orders," said Mark Rumold, an EFF attorney involved in the litigation.

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