Sunday, August 25, 2013

Secret Court Rebuked N.S.A. on Surveillance

The 85-page ruling by Judge John D. Bates, then serving as chief judge on the Foreign Intelligence Surveillance Court, involved an N.S.A. program that systematically searches the contents of Americans’ international Internet communications, without a warrant, in a hunt for discussions about foreigners who have been targeted for surveillance.

The Justice Department had told Judge Bates that N.S.A. officials had discovered that the program had also been gathering domestic messages for three years. Judge Bates found that the agency had violated the Constitution and declared the problems part of a pattern of misrepresentation by agency officials in submissions to the secret court.

The release of the ruling, the subject of a Freedom of Information Act lawsuit, was the latest effort by the Obama administration to gain control over revelations about N.S.A. surveillance prompted by leaks by the former agency contractor Edward J. Snowden.

The collection is part of a broader program under a 2008 law that allows warrantless surveillance on domestic networks as long as it is targeted at noncitizens abroad. The purely domestic messages collected in the hunt for discussions about targeted foreigners represent a relatively small percentage of what the ruling said were 250 million communications intercepted each year in that broader program.

While the N.S.A. fixed problems with how it handled those purely domestic messages to the court’s satisfaction, the 2011 ruling revealed further issues.

“The court is troubled that the government’s revelations regarding N.S.A.’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,” Judge Bates wrote.

One of the examples was redacted in the ruling. Another involved a separate N.S.A. program that keeps logs of all domestic phone calls, which the court approved in 2006 and which came to light in June as a result of leaks by Mr. Snowden.

In March 2009, a footnote said, the surveillance court learned that N.S.A. analysts were using the phone log database in ways that went beyond what the judges believed to be the practice because of a “repeated inaccurate statements” in government filings to the court.

“Contrary to the government’s repeated assurances, N.S.A. had been routinely running queries of the metadata using querying terms that did not meet the standard for querying,” Judge Bates recounted. He cited a 2009 ruling that concluded that the requirement had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall ... regime has never functioned effectively.”

The Electronic Frontier Foundation, a free speech and privacy rights group, sued to obtain the ruling after Senator Ron Wyden, an Oregon Democrat who sits on the Senate Intelligence Committee, fought last summer to declassify the basic fact that the surveillance court had ruled that the N.S.A. had violated the Fourth Amendment.

In a statement, Mr. Wyden — an outspoken critic of N.S.A. surveillance — said declassification of the ruling was “long overdue.” He argued that while the N.S.A. had increased privacy protections for purely domestic and unrelated communications that were swept up in the surveillance, the collection itself “was a serious violation of the Fourth Amendment.”

Mark Rumold of the Electronic Frontier Foundation praised the administration for releasing the document with relatively few redactions, although he criticized the time and the difficulty in obtaining it. But he also said the ruling showed the surveillance court was not equipped to perform adequate oversight of the N.S.A.

“This opinion illustrates that the way the court is structured now it cannot serve as an effective check on the N.S.A. because it’s wholly dependent on the representations that the N.S.A. makes to it,” Mr. Rumold said. “It has no ability to investigate. And it’s clear that the N.S.A. representations have not been entirely candid to the court.”

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