Secret court 'troubled' by NSA surveillance, ruled illegal

Secret court 'troubled' by NSA surveillance, ruled illegal

Summary: A secret Washington D.C.-based surveillance court found an NSA email and data collection program illegal in 2011, as it collected tens of thousands of American emails each year.

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TOPICS: Security
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(Image: NSA)

The U.S. government on Wednesday released a secret court ruling that found some surveillance conducted by the National Security Agency illegal.

The Electronic Frontier Foundation (EFF) heralded the release of the 86-page opinion by the Foreign Intelligence Surveillance Court (FISC), set up under its namesake 1978 act, as a "victory."

The Director for National Intelligence James Clapper announced in a statement, following the release of the court opinion, the establishment of a review group which will report on the U.S.' surveillance capabilities by mid-December.

The group will assess "whether the U.S. employs its technical collection capabilities in a manner that optimally protects our national security [...] while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust."

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It comes after weeks of leaks releases by a number of U.K. and U.S. newspapers and outlets acquired by former NSA contractor Edward Snowden, who blew the whistle on a number of U.S. government surveillance programs in June.

The court document, dated October 3, 2011, found some of the NSA's collections to be in breach of the Fourth Amendment, which gives U.S. persons protections against unreasonable searches and seizures. 

It's not the first time the opinion has been released. It was published in January, but the document was so heavily redacted it was impossible to read, bar a single sentence that offered nothing of value.

In the readable (albeit still heavily redacted) opinion, the court said it was "troubled" that the government's revelations over the NSA's acquisition of Internet traffic was the third time in less than three years in which the government disclosed a "substantial misrepresentation" of the scope of its collection programs.

The now-discontinued "upstream" program diverted large quantities of international data from fiber cables running in and out of the U.S. into a data center, where it could be stored and analyzed. 

Investigative reporting by ZDNet in June first detailed how fiber and telecoms companies were ordered under law to allow vast amounts of data belonging to U.S. citizens and foreign nationals to be wiretapped. 

Realistically, the NSA was unable to filter out the communications of Americans speaking to other Americans.

According to NSA estimates, as much as 56,000 "wholly domestic communications" may have been acquired, and are being acquired, by the government agency per year. 

NSA acquires more than 250 million Internet communications each year under Section 702 of FISA, the document states. Most are obtained from Internet providers. The court opinion also says that the NSA's upstream program constitutes only approximately 9 percent of the total Internet communications being acquired under Section 702.

Earlier on Wednesday, a report by The Wall Street Journal claimed the NSA could reach as much as 75 percent of all U.S. Internet traffic.

"The exceptions to minimization requirements mean information gathered on Americans could be used in ordinary criminal investigations, according to rules approved by the FISA court," the Journal wrote.

One month after the FISC ruled the upstream program unconstitutional, the NSA adjusted its collection process to filter out wholly American traffic away from international traffic. It also purged any domestic traffic that it received. 

"Contrary to the government's repeated assurances, [the] NSA had been routinely running [search] queries of the metadata using querying terms that did not meet the required standard for querying," the document said. 

The court concluded, it read, that this 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."

Topic: Security

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16 comments
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  • My only concern is its inefficient

    Personally, my only concern of what the NSA is doing is that its seems inefficient trying to monitor everyone then focusing on primary suspects and potential terrorists gathered from other agencies and confiscated material. It seems to me their must be a alternative motive for monitoring everyone or as many as possible. Its either a terrible breach of our rights as Americans for no apparent reason other then spying on what we do. Or a terrible decision to find terrorists by way of the most inefficient way possible. In either case Obama and company seem to make up the rules as applied to them as they go along. IRS scandal, NSA, Benghazi? What happened to the President who offered up a change of transparency to Washington? That's all I want to know.
    JohnnyES
    • I'm guessing that you typed that from a Windows computer.

      Which is quite ironic. You're anti-NSA but you run an OS that has an NSA backdoor built into it.

      1) http://www.theguardian.com/world/2013/jul/11/microsoft-nsa-collaboration-user-data
      2) http://www.washingtonsblog.com/2013/06/microsoft-programmed-in-nsa-backdoor-in-windows-by-1999.html
      T1Oracle
      • Enjoy the delicious....

        Kool-Aid.

        Windows backdoor ya.

        And what a wickedly brilliant idea this would have been.

        lets design a computer operating system that runs most of the computers in the world and lets make it available in such a way the Chinese for example can get a copy of it and do what ever backward engineering on it they like in order to find that backdoor.

        Do people even think prior to running their mouth??

        Do they?

        Seriously, the most simple thoughtfulness as to the possibility of something happening and the immediate reasonableness of that happening or not should at least be considered before writing something.

        What a ridiculous joke.
        Cayble
  • Didn't ZDNet have

    a story where they said that less than 1% of traffic was being monitored? So, if that was off "just a bit" at 75% (that may also be low, since Snowden said "all"), how can we believe that only metadata is being stored?
    Tony Burzio
    • 1.6%

      And don't forget, over 75% of the traffic will be Netflicks and YouTube and other video streaming services, in all probability.

      By the time you take out streaming music, streaming video, spam emails etc. there probably isn't much more than a couple of percent of internet traffic left to scan...
      wright_is
  • Wouldn't this make Snowden a whistle blower?

    "The court document, dated October 3, 2011, found some of the NSA's collections to be in breach of the Fourth Amendment, which gives U.S. persons protections against unreasonable searches and seizures."
    ye
    • yep...

      so it would seem.
      BitBanger_USA
    • Of course it does...

      ... but try telling that to the brainwashed shills who sprout "USA... USA..." bs here, they still think the NSA boss is really called Johnny Appleseed and that the WWE is real...
      btone-c5d11
      • and...

        ... the Earth is flat?
        Snak
        • Of course not

          If it was flat, it couldn't be the center of the Universe.
          NickNielsen
      • The enemies of USA are real.

        @btone-c5d11, Protecting this nation is Job #1 for ever sitting president.

        Until you become president, you have no way of *really* appreciating the magnitude of threats that are directed at USA. This explains why people on the outside [of the presidency] will continue to spout all sorts of uninformed "rubbish" in the foreseeable future.

        When you come up with a pain-free way of protecting this nation, please let the appropriate authorities know. We will all thank you for it.
        auogoke@...
        • Real?

          "Until you become president, you have no way of *really* appreciating the magnitude of threats that are directed at USA. This explains why people on the outside [of the presidency] will continue to spout all sorts of uninformed "rubbish" in the foreseeable future."

          I see more rubbish coming from people who are willing to give carte blanche to a president based on a cartoonesque view of the world at large that actually has little to do with reality.

          Terrorism is nothing new. It has existed since time immemorial. Nations have dealt with it more or less effectively - and the more effective methods rare had anything to do with use of the military or turning into a police state, since both usually created MORE problems, not less. The only "exception" might be the defeat of the Tamil Tigers. But that's because the Singhalese government comes pretty close to committing genocide on the Tamil population. Of course, no Tamils, no Tamil terrorism - but hardly the course of action that suggests that the Tigers were indeed no resistance fighters but criminal fanatics.

          "When you come up with a pain-free way of protecting this nation, please let the appropriate authorities know. We will all thank you for it."

          You miss the point completely. You cannot be the good guy AND be fully protected. That's the point of being a good guy - you limit your actions by certain ethical standards, which leave by definition room to exploit them. If you want to be fully protected, you basically have two choices: Brutally eradicating any outside threat or brutally controlling everything that happens within your area of responsibility.

          Your desire for more protection is childish, unrealistic, and as much terrorism as any attack - because it cannot be realized without oppression, either within or without.
          hydroxide
  • I'd tell you but I'd have to kill you

    A secret agency operating under a secret law, overseen by secret courts. What could go wrong?
    Robert Hahn
  • Obama and company!!

    The "coalition of the willing" was formally created in 1947, when the Identify, Monitor, and Control (IMC) mindset became the basis of all the coalitions actions. Suggest you advise your readers on the level of security the "Company" CEO actually has based upon need to know. Will be surprised.
    NightLife6
  • Why is everybody hyperventilating?

    The government oversight reported the oversampling to the judge, so why the hyperventilation? I agree we need independent oversight, but for heaven's sake, you found out because they told you they found an error in their own process.

    The judge remarks that there have been three violations in as many years means 2008, 2009, 2010 seeing the filing was in April 2011.
    OkeyM
  • A democracy without civil liberties

    Democracy is merely a system for selecting people who will run the government. It does not in itself guarantee freedom and civil liberties. The American people assume that democracy guarantees the preservation of civil liberties and the freedom to be left alone. Not only are they misguided but they are far too acquiescent in allowing the government to stomp all over the Bill of Rights and increase government intrusiveness and paternalism.

    Americans living at the turn of the 20th Century had far more freedom than we have today. Congress is useless. The only member of the Senate who speaks out about civil liberties is Sen. Rand Paul of Kentucky.

    The 17th Amendment was a mistake. It took the election of senators away from state legislators and gave it to the people. Today the Electoral College is a joke. The Founding Fathers wanted educated, informed men who exercise reason and not emotion to elect the president. Today we have the opposite. That's certainly a strong reason why we're losing our way.
    gjampol@...