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NSA Broke Privacy Rules Thousands of Times

Contrary to Official Claims...


The chairman of the Senate Judiciary Committee has called for more hearings to examine the government’s surveillance tactics following new revelations that the National Security Agency has violated privacy rules thousands of times in its surveillance of U.S. citizens and foreigners.

The revelations come from leaked documents and stand in stark contrast to claims by NSA Director Keith Alexander that the agency has not abused its surveillance powers and that it stores no data on U.S. citizens.

According to an internal government audit and other documents leaked to the Washington Post by NSA whistleblower Edward Snowden, the agency overstepped its legal authority or broke privacy rules thousands of times a year since 2008, when Congress expanded its authority with passage of the FISA Amendments Act, which allowed the NSA to do bulk collection of records from internet companies and others.

The audit, from May 2012, tallied 2,776 incidents in the preceding 12 months. The documents also reveal efforts by NSA staffers to withhold information from the Foreign Intelligence Surveillance Court, which is supposed to provide oversight of NSA surveillance, and to whitewash reports submitted to the Justice Department and the Office of the Director of National Intelligence by removing details about NSA activity, including removing mention of unintended surveillance of Americans.

In one case, the Post reports, the NSA did not tell the FISA Court about a new collection method until it had been used for many months. The court subsequently ruled the method unconstitutional.

The case involved large volumes of international data the NSA collected as it passed through fiber-optic cables in the U.S. and diverted it to a repository where the material was to be stored temporarily for processing and selection.

The collection included U.S. and foreign emails. NSA lawyers told the FISA Court that the agency could not effectively filter the communications of Americans, and in October 2011, months after the program had begun, the Court ruled that the collection was unconstitutional, saying that the methods used were “deficient on statutory and constitutional grounds.” It ordered the NSA to comply with standard privacy protections or stop the program.

NSA Director Keith Alexander (left). Photo: ISAFMedia / Flickr

The Obama administration has been fighting a legal battle to prevent the court’s opinion in the matter from being released, this despite President Obama’s assertions a week ago that his administration intended to become more transparent about the surveillance programs.

According to the audit, most other violations and over-collection of data were unintended. Many involved failures of due diligence or violations of standard operating procedure, the Post notes. But they also included a violation of a court order and unauthorized use of data about more than 3,000 Americans and green-card holders. That incident occurred in February 2012 and involved the unlawful retention of 3,032 files that the FISA Court had ordered the NSA to destroy. Each file contained an undisclosed number of telephone call records, the Post says.

The documents stand in stark contrast to statements made by NSA chief Alexander and others that the NSA does not hold data on U.S. citizens and that there have been no instances of abuse by the NSA. In June, Deputy Attorney General James Cole told Congress that extensive safeguards and oversight kept the NSA in check. “Every now and then, there may be a mistake,” he said, but they were few and minor.

The NSA responded to the revelation by telling the Post, “We’re a human-run agency operating in a complex environment with a number of different regulatory regimes, so at times we find ourselves on the wrong side of the line.” The agency also dismissed the number of incidents, saying they were tiny in comparison to the amount of surveillance the agency does.

But unnamed sources told the paper that the audit only covered incidents at the NSA’s Fort Meade headquarters and other ­facilities in the Washington area. The number would be substantially higher if it included other NSA centers, they told the paper.

Civil liberties groups have called for a complete review of the NSA’s operations.

“The most recent revelations paint a disturbing picture of misconduct at the NSA and show that current oversight is not enough. Even the secret court charged with reviewing NSA operations has conceded that it doesn’t have the capacity to supervise the agency’s vast intelligence operations,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice at New York University School of Law. “It’s time for a fundamental overhaul of how the NSA operates.”

Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont) had sought to add more independent oversight to the FISA Amendments Act when it was up for re-authorization last year, but failed. He has since re-introduced legislation, known as the Leahy-Lee bill, that includes this added oversight as well as changes to Section 215 of the Patriot Act, which the NSA has been using to do bulk collection of millions of phone call records belonging to U.S. citizens. He has also called for more hearings on the matter.

“The American people rely on the intelligence community to provide forthright and complete information so that Congress and the courts can properly conduct oversight,” Leahy said in a statement. “I remain concerned that we are still not getting straightforward answers from the NSA…. Using advanced surveillance technologies in secret demands close oversight and appropriate checks and balances, and the American people deserve no less than that.”