The Two-Way
5:03 pm
Tue September 10, 2013

Documents: NSA Phone Records Program Violated Court Rules

Originally published on Tue September 10, 2013 6:18 pm

The Director of National Intelligence declassified some 1,800 pages of documents today, that show that a U.S. spy program that collected the phone records of Americans ran afoul privacy rules for years.

The documents are posted on the DNI's Tumblr site. The Wall Street Journal, which was briefed by intelligence officials about the release, reports that the bulk collection of Americans' phone records failed to meet the privacy standards set by the Foreign Intelligence Surveillance Court (FISC). The paper adds:

"The revelations called into question NSA's ability to run the sweeping domestic surveillance programs it introduced more than a decade ago in the wake of the 2001 terrorist attacks. Officials said the violations were inadvertent, because NSA officials didn't understand their own phone-records collection program.

"'There was nobody at the NSA who had a full understanding of how the program worked," said an intelligence official. ...

"Until Tuesday, officials hadn't described the period in which the program repeatedly violated court orders. They made public the violations as part of a court-ordered release of documents stemming from lawsuits by the Electronic Frontier Foundation and the American Civil Liberties Union."

We're still parsing the information. We'll update this post with highlights, as well what others are finding in the documents.

Update at 5:48 p.m. ET. No Confidence:

Perhaps the most significant document we've read through is a March 2009 opinion from FISC Judge Reggie B. Walton (pdf).

In essence, Walton writes that ever since the court approved the bulk collection of phone records in 2006, the U.S. government abused its power and misled the court about what it was doing.

On page 12 of the opinion, Walton says this is significant because the secret court would not have approved the bulk collection of phone metadata had it not been for the so-called minimization procedures that protected the privacy of Americans.

In a damning paragraph, Walton writes:

"Given the Executive Branch's responsibility for and expertise in determining how best to protect our national security, and in light of the scale of this bulk collection program, the court must rely heavily on the government to monitor this program to ensure that it continues to be justified, in the view of those responsible for our national security, and that it is being implemented in a manner that protects the privacy interests of U.S. persons as required by applicable minimization procedures. To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the court's orders. The Court no longer has such confidence." (Emphasis ours.)

After this opinion, the Court required the NSA to seek individual approval every time it wanted to query the phone records database. The U.S. government issued corrective measures and in September of 2009, the Court was satisfied and lifted the case-by-case approval.

Since then, Director of National Intelligence James Clapper said, the Court has continually OKd the program.

Update at 4:58 p.m. ET. Daily Violations:

Quoting unnamed "senior intelligence officials," Bloomberg reports that the National Security Agency violated the rules set by the FISC on a daily basis.

Bloomberg adds:

"The violations occurred between May 2006 and January 2009 and involved checks on as many as 16,000 phone numbers, including some based in the U.S., said two senior intelligence officials with direct knowledge of how the program operated. They asked not to be identified in order to speak about sensitive matters."

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