Newly declassified documents released in response to a Freedom of Information Act request by the EFF show that the secret Foreign Intelligence Surveillance Court in 2011 declared that the National Security Agency’s techniques for collecting upstream Internet communications was unconstitutional and illegal. The court opinion provides a unique insight into the kind of techniques that the NSA uses to conduct its surveillance and the court’s views of the agency’s increasingly aggressive collection of data, including domestic communications.
The opinion of the FISC, handed down in October 2011, shows that the court was concerned about the way that the NSA was attempting to minimize the chances of collecting wholly domestic communications, as well as the agency’s mounting number of misrepresentations about the scope of its collection efforts. In the opinion, which was released Wednesday and it heavily redacted in some sections, FISC judge John D. Bates says that the NSA’s efforts to minimize the collection of domestic communications were deficient and violated the Fourth Amendment.
“NSA’s minimization procedures, as the government proposes to apply them to MCTs as to which the ‘active user’ is not known to be a tasked selector, do not meet the requirements of 50 USC § 1881 a(e) with respect to retention and; NSA’s targeting and minimization procedures, as the government proposes to apply them to MCTs as to which the ‘active user’ is not known to be a tasked selector are inconsistent with the requirements of the Fourth Amendment,” the order says in part.
The MCTs referenced in the order are “multi-communication transactions”, a vague term that refers to the collection of things such as the contents of a person’s webmail inbox in the form of a screenshot, which shows the timestamps, senders and other data for the emails. In a conference call with reporters on Wednesday, an unnamed government attorney said that the MCTs present specific problems for the NSA when it comes to separating domestic and foreign communications.
“Those are all transmitted across the Internet as one communication, even though there are 15 separate emails mentioned in them. And for technological reasons, NSA was not capable of breaking those down into their — and still is not capable — of breaking those down into their individual components,” the attorney explained, according to a partial transcript from the EFF.
The FISC opinion and order cover a large number of different elements that the government is trying to get the court to either approve or renew. In most of the cases, the court approved the government’s petitions, finding that the government’s techniques meet the constitutional requirements. The thing that sticks out, though, is the court’s tone of alarm about the NSA’s increasing number of problems properly representing the scope of its collection efforts. In a footnote in the opinion, Bates says that the NSA has had three separate misrepresentations in less than three years up to that point in 2011.
“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,” the footnote says.
The EFF, which filed the FOIA request to declassify the opinion and order, said that the release of the opinion is a milestone.
“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. EFF will keep fighting until the NSA’s domestic surveillance program is reined in, federal surveillance laws are amended to prevent these kinds of abuse from happening in the future, and government officials are held accountable for their actions,” Mark Rumold of the EFF said in a blog post.