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by Staff Writer

FISA Judge: NSA misrepresented themselves, violated the Constitution

Aug 22, 20134 mins
Data and Information SecurityGovernmentIT Leadership

Newly released version of 2011 ruling finds federal judge said NSA violated Fourth Amendment in intelligence collection program

A federal judge said in a recently declassified opinion, issued during his time serving on the Foreign Intelligence Surveillance Court, that the National Security Agency misrepresented themselves and violated the Constitution for several years.

After the Electronic Frontier Foundation (EFF) won their lawsuit to obtain an 86-page opinion from the secret Foreign Intelligence Surveillance Court (FISC) issued in October of 2011, the government released the redacted version on Wednesday, as written by Judge John D. Bates.

In it, Judge Bates outlines the NSA’s Fourth Amendment violations as they go about collecting intelligence, including upstream ISP traffic, and how the agency collected as many as 56,000 completely domestic communications per year, for several years. Yet, according to the opinion, the court was just now learning that the nature of the information the NSA said they were collecting was fundamentally different.

“The court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program& Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the standard for querying,” Judge Bates wrote in his opinion [PDF].

Related: NSA collected thousands of domestic communications in 2011

“The government’s submissions make clear not only that NSA has been acquiring Internet transactions since before the Court’s approval of the first Section 702 certification in 2008, but also that NSA seeks to continue the collection of Internet transactions&”

At issue is the wholesale collection of Internet and telecommunications data, which by law is supposed to be largely restricted in scope, with regard to what is collected and why, as well as restricted as to content. However, the FISC ruled that the NSA overstepped their bounds, and collected far more data than was previously approved. Going so far as to mislead the court as to what exactly was being collected and examined.

Two years later, the NSA says they have changed the way data is collected and processed, but documents leaked by Edward Snowden, and recent reports from the Wall Street Journal, bring the FISC’s condemnation and accusations back into the spotlight. The assumption being, if they misled the courts on three separate occasions, what’s to prevent further instances?

On Monday, the Wall Street Journal (citing both current and former officials as sources) says that the NSA has developed a surveillance network that has the ability to cover more than 75 percent of all U.S. Internet traffic. In some cases, this collection network retains the written content of emails written by citizens, as well as VoIP-based phone calls.

“The programs, code-named Blarney, Fairview, Oakstar, Lithium and Stormbrew, among others, filter and gather information at major telecommunications companies,” the Wall Street Journal reported.

“This filtering takes place at more than a dozen locations at major Internet junctions in the U.S., officials say. Previously, any NSA filtering of this kind was largely believed to be happening near points where undersea or other foreign cables enter the country.”

In a statement, U.S. Senator Ron Wyden, who himself is a strong critic of the NSA’s surveillance programs, said that the release of the declassified ruling was long overdue. Despite the changes made since 2011, he added, the data collection described within the ruling was a “serious violation of the 4th Amendment and demonstrates even more clearly the need to close the back-door searches loophole” that allows American communications to be collected without warrant if they are caught in the dragnet while the NSA conducts foreign intercepts.

[Related: 6 ways we gave up our privacy]

“Moreover, the ruling states that the NSA has knowingly acquired tens of thousands of wholly domestic communications under section 702 of the Foreign Intelligence Surveillance Act, even though this law was specifically written to prohibit the warrantless acquisition of wholly domestic communications. The FISA Court has noted that this collection violates the spirit of the law, but the government has failed to address this concern in the two years since this ruling was issued,” the Senator added.

Mirroring the Senator’s thoughts, the ACLU issued a statement calling for stronger oversight, as the declassified ruling provides further proof that current mechanisms are far too feeble. Moreover, the ACLU notes that the opinion further serves as a reminder of “how incredibly permissive our surveillance laws are” adding that this kind of surveillance “is unconstitutional, and Americans should make it very clear to their representatives that they will not tolerate it.”