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NSA searched phone records in violation of court requirements, documents say

Documents newly declassified under a Freedom of Information Act lawsuit reportedly show that the National Security Agency unlawfully searched Americans' phone records and misrepresented program to court officials.

The National Security Agency / Central Security Service Threat Operations Center, shown in an NSA photo.
National Security Agency

Tuesday saw more disconcerting news about the US National Security Agency, as a clutch of newly declassified documents reportedly showed that the NSA searched Americans' phone call records without paying heed to court-ordered requirements and misrepresented the secret call-tracking program to legal officials.

The roughly 1,800 pages of documents, released today in response to a Freedom of Information Act lawsuit by the Electronic Frontier Foundation, show, according to various reports, that from May 2006 to January 2009 the NSA investigated nearly 18,000 phone numbers -- but that only 2,000 of those involved a court-mandated "reasonable, articulable suspicion" of a link to terrorist activities.

The investigations involved checking to see if there had been contact between phone numbers collected in an NSA database and numbers on an NSA "alert list" associated with suspected terrorists. The content of calls apparently wasn't monitored, but NSA analysts could see what numbers were called and when, as well as how long calls lasted.

Revelations this past June about Verizon being forced to hand over such phone call "metadata" to the NSA prompted an official with the American Civil Liberties Union to say, "It's analogous to the FBI stationing an agent outside every home in the country to track who goes in and who comes out."

As noted by The Washington Post, in one of the newly declassified documents -- a March 2009 opinion by the Foreign Intelligence Surveillance Court -- Judge Reggie B. Walton wrote, "The court finds that the government's failure to ensure that responsible officials adequately understood the NSA's [call-tracking] process, and to accurately report its implementation to the court, has prevented for more than two years both the government and the FISC from taking steps to remedy daily violations."

In a statement today on the "IC [intelligence community] on the Record" blog, Director of National Intelligence James R. Clapper attributed "compliance incidents," and the misrepresentations, to the technological complexity of the system and to "gaps in understanding" among NSA staff.

"The compliance incidents discussed in these documents stemmed in large part from the complexity of the technology employed in connection with the bulk telephony metadata collection program, interaction of that technology with other NSA systems, and a lack of a shared understanding among various NSA components about how certain aspects of the complex architecture supporting the program functioned," he wrote. "These gaps in understanding led, in turn, to unintentional misrepresentations in the way the collection was described to the FISC."

Clapper also said that the problems had been revealed by the NSA itself, by way of "a number of successful oversight, management, and technology processes," and that the problems had been remedied since 2009, when, for a time, and in response to the violations, the Foreign Intelligence Surveillance Court had required the agency to gain court permission before investigating any new phone number.

"Moreover," Clapper wrote, "the FISC in September of 2009 relieved the Government of its requirement to seek Court approval to query the metadata on a case-by-case basis and has continued to reauthorize this program. Indeed, in July of this year the FISC once again approved the government's request for reauthorization."

Nevertheless, the new information follows on other recent revelations, including the release, on August 23, of a 2011 ruling by FISC that decried the government's "substantial misrepresentation" of the scope of NSA activities, and the admission by the NSA, on August 23, that some of its analysts engaged in "willful violations" of legal restrictions.

Today's revelations are being pointed to by critics of the NSA as more evidence of the danger the agency poses to Americans' right to privacy and to freedom from unreasonable searches and seizures.

"The documents are further proof of how unwieldy the system has become," Mark M. Jaycox, a policy analyst with the Electronic Frontier Foundation, said in a statement to CNET. "Every day we find out about more violations, and more abuses. In addition, the documents raise even more questions than answers...The revelations are a larger comment on NSA's actions. It is not just about this violation in 2009, the 2011 violation...It's the systematic abuses, and the ongoing ignorance of how the collection of mass data implicates innocent everyday users and violates core constitutional freedoms."