May 26, 2017, "Secret court rebukes NSA for 5-year illegal surveillance of U.S. citizens," McClatchy, Tim Johnson, via Miami Herald
"U.S. intelligence agencies conducted illegal surveillance on American citizens over a five year period, a practice that earned them a sharp
rebuke from a secret court [FISA court] that called the matter a “very serious”
The criticism is in a lengthy secret
ruling that lays bare some of the frictions between the Foreign
Intelligence Surveillance Court and U.S. intelligence agencies obligated
to obtain the court’s approval for surveillance activities.
The ruling, dated April 26 and bearing the label “top secret,” was obtained and published Thursday by the news site Circa.
It is rare that such rulings see the light of day, and the lengthy unraveling of issues in the 99-page document
opens a window on how the secret federal court oversees surveillance
activities and seeks to curtail those that it deems overstep legal
The document, signed by Judge
Rosemary M. Collyer, said the court had learned in a notice filed Oct.
26, 2016, that National Security Agency analysts had been conducting
prohibited queries of databases “with much greater frequency than had
previously been disclosed to the court.”
It said a judge chastised the NSA’s
inspector general and Office of Compliance for Operations for an
“institutional ‘lack of candor’” for failing to inform the court. It
described the matter as “a very serious Fourth Amendment issue.”
The Fourth Amendment protects people
from unreasonable searches and seizures by the government, and is a
constitutional bedrock protection against intrusion.
Parts of the ruling were redacted,
including sections that give an indication of the extent of the illegal
surveillance, which the NSA told the court in a Jan. 3 notice was partly
the fault of “human error” and “system design issues” rather than
intentional illegal searches.
The NSA inspector general’s office
tallied up the number of prohibited searches conducted in a three-month
period in 2015, but the number of analysts who made the searches and the
number of queries were blacked out in the ruling.
The NSA gathers communications in
ways known as “upstream” and “downstream” collection. Upstream
collection occurs when data are captured as they move through massive
data highways – the internet backbone – within the United States.
Downstream collection occurs as data move outside the country along
fiber optic cables and satellite links.
Data captured from both upstream and
downstream sources are stored in massive databases, available to be
searched when analysts need to, often months or as much as two years
after the captures took place.
The prohibited searches the court
mentioned involved NSA queries into the upstream databanks, which
constitute a fraction of all the data NSA captures around the globe but
are more likely to contain the emails and phone calls of people in the
Federal law empowers the NSA and CIA
to battle foreign terrorist actions against the United States by
collecting the electronic communications of targets believed to be
outside the country.
While communications of U.S. citizens or residents
may get hoovered up in such sweeps, they are considered “incidental” and
must be “minimized” – removing the identities of Americans – before
The court filing noted an NSA decision March 30 to narrow collection of “upstream” data within the United States. Under that decision,
the NSA acknowledged that it had erred in sweeping up the
communications of U.S. citizens or residents but said those errors “were
not willful.” Even so, the NSA said it would no longer collect certain
kinds of data known as “about” communications, in which a U.S. citizen
was merely mentioned.
The NSA announced that change
publicly on April 28, two days after the court ruling, saying the agency
would limit its sweeps to communications either directly to or from a
foreign intelligence target. That change would reduce “the likelihood
that NSA will acquire communications of U.S. persons or others who are
not in direct contact with one of the agency’s foreign intelligence
The court document also criticized
the FBI’s distribution of intelligence data, saying it had disclosed raw
surveillance data to sectors of its bureaucracy “largely staffed by
The “contractors had access to raw
FISA information that went well beyond what was necessary to respond to
the FBI’s requests,” it said, adding that the bureau discontinued the
practice on April 18, 2016."