NSA violations led judge to consider viability of surveillance program

A judge on the secret surveillance court was so disturbed by the National Security Agency's repeated violations of privacy restrictions that he questioned the viability of its bulk collection of Americans' phone records, according to newly declassified surveillance documents.

Judge Reggie Walton, now the presiding judge on the Foreign Intelligence Surveillance (Fisa) court, imposed a significant and previously undisclosed restriction on the NSA's ability to access its bulk databases of phone records after finding that the agency repeatedly violated privacy protections.

The documents, mostly from 2009 and declassified Tuesday, describe what Walton said were "thousands" of American phone numbers improperly accessed by government counterterrorism analysts.

They also indicate that US government officials, including NSA director Keith Alexander, gave misleading statements to the court about how they carried out that surveillance.

Despite repeated public assurances of NSA competence, the agency told the Fisa court in 2009 that "from a technical standpoint, there was no single person who had a complete understanding" of its phone records "architecture".

All that led to "daily violations" for more than two years of call records from Americans "not the subject of any FBI investigation and whose call detail information could not otherwise have been legally captured in bulk," Walton wrote.

In 2009, Walton questioned whether the program could be allowed to continue, asking if "the value of the program to the nation's security justifies the continued collection and retention of massive quantities of US person information".

He considered the violations serious enough to order the authorities not to "access the data collected until such a time as the government is able to restore the court's confidence that the government can and will comply with previously approved procedures for accessing such data."

An internal government review launched in response to the order disclosed that in 2006, the NSA discovered one of its partner agencies – its name is redacted – improperly included credit card numbers in its databases.

Although the government said the problem only recurred once in 2008, it warned that "to destroy records in the [redacted] that contain credit card numbers, NSA would have to destroy a swath of records in addition to those few containing credit card numbers." It pledged that under a future data-management program, "the fields containing credit card information will not be included in the data transfer and will be purged."

Another document shows that the Justice Department told the court in January 2009 that the government had been querying the phone records database in a manner "directly contrary" to a court order and "directly contrary to the sworn attestations of several executive branch officials".

The documents, posted on a Tumblr recently established by the US intelligence agencies, came after the American Civil Liberties Union and the Electronic Frontier Foundation successfully sued the FBI for more disclosure about the phone records collection through the Freedom of Information Act. A federal court in August ordered an initial round of disclosure to occur Tuesday.

They show that in February 2009, the government conceded that a declaration to the court made by Alexander, the NSA director, was "inaccurate" in relation to the standards for searching through phone numbers contained in the agency's phone records databases. These were ostensibly authorised under Section 215 of the Patriot Act, also known as the business records provision.

The standard for searching through the database is meant to be "reasonable articulable suspicion" of a connection to terrorism. In fact, Alexander told the court, the NSA "incorrectly described an intermediate step called the alert process that NSA applied to the incoming stream of [bulk telephone] metadata".

Alexander said that there was an additional safeguard in place to ensure analysts did not improperly disseminate or analyse phone records data. But Alexander said that the agency's failure to describe the alert process accurately meant that Fisa judges were unable to determine whether the NSA was correctly implementing the court's orders.

His 2009 concession appears to shed light on a declaration made by another Fisa court judge in 2011, who stated that the "volume and nature of the information [NSA] has been collecting is fundamentally different from what the court had been led to believe."

In 2009, Walton wrote that since the NSA had accessed phone records metadata in an unauthorised manner "on a daily basis". The judge said that Alexander's explanation of the NSA's "non-compliance with the court's orders," which centered around an apparent misunderstanding by the NSA of what data was governed by privacy protections, "strains credulity".

He wrote: "Such an illogical interpretation of the court's orders renders compliance with the RAS [reasonable articulable suspicion] standard merely optional."

The NSA had told the court that "from a technical standpoint, there was no single person who had a complete understanding of the BR [Business Records] metadata architecture."

Walton found that the government's "failure to ensure that responsible officials adequately understood the NSA's alert process, and to accurately report its implementation to the court, has prevented, for more than two years, both the government and the [Fisa court] from taking steps to remedy daily violations" of Americans' privacy.

In fact, Walton, who lamented the court's inability to independently assess the NSA's claims of compliance, appears in 2009 to have considered ending the bulk phone records collection entirely.

"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," Walton wrote. "The court no longer has such confidence."

According to the NSA, by early 2009, the surveillance agency had passed along to the FBI some 2,549 phone numbers from the bulk phone records database. The government filings to the court, Walton noted, cited "three preliminary investigations of persons in the US" opened as a result. "The mere commencement of a preliminary investigation, by itself, does not seem particularly significant," he wrote.

Yet the program continues. The NSA's deputy director, John C Inglis, testified in July that the NSA could not identify a single case where the bulk phone records collection unambiguously led to the prevention of a terrorist attack.

According to the NSA, by early 2009, the surveillance agency had passed along to the FBI some 2,549 phone numbers from the bulk phone records database. The government filings to the Court, Walton noted, cited "three preliminary investigations of persons in the US" opened as a result.

"The mere commencement of a preliminary investigation, by itself, does not seem particularly significant," he wrote.

Walton also concluded that NSA "data accessing technologies and practices" to help analysts search through the phone records databases "were never adequately designed to comply" with court-ordered privacy restrictions.

The documents reveal that Walton ordered the government not to search through the phone records data except to "ensure data integrity and compliance with the Court's orders" or if the government believed "immediate access is necessary to protect against an imminent threat to human life."

Walton also allowed the government to search through the databases "for the purposes of obtaining foreign intelligence" on a "case by case basis," if the Court approved such individual searches -- a move that undercut a central government contention of the need to collect and sift through the data swiftly without individual court orders to prevent terrorist attacks.

The program continues. The NSA's deputy director, John C Inglis, testified in July that the NSA could not identify a single case where the bulk phone records collection unambiguously led to the prevention of a terrorist attack.

In a statement, two leading Senate critics of the NSA's bulk phone records collection said the Fisa court's 2009 restriction of the agency's ability to access the databases showed the bulk collection ought to be ended.

"The fact that the Fisa court was able to handle these requests on an individual basis is further evidence that intelligence agencies can get all of the information they genuinely need without engaging in the dragnet surveillance of huge numbers of law-abiding Americans," said Ron Wyden and Mark Udall, both members of the intelligence committee.

"We have said before that we have seen no evidence that the bulk collection of Americans' phone records has provided any intelligence that couldn't be gathered through less intrusive means and that bulk collection should be ended. These documents provide further evidence that bulk collection is not only a significant threat to the constitutional liberties of Americans, but that it is a needless one."

ACLU attorney Alex Abdo said in a statement: "These documents show that the NSA repeatedly violated court-imposed limits on its surveillance powers, and they confirm that the agency simply cannot be trusted with such sweeping authority." He said the program should never have been authorised in the first place. "The NSA should end the bulk collection of information about Americans," he said.

James Clapper, the director of national intelligence, said that the release of the documents stood as "a testament to the government's strong commitment to detecting, correcting, and reporting mistakes that occur in implementing technologically complex intelligence collection activities, and to continually improving its oversight and compliance processes."

But they come as congressional opposition to the bulk phone records collection gained a powerful new ally.

Darrell Issa, the California Republican who chairs the powerful House committee on oversight and government reform, said that he backed legislation to "permanently cease" the bulk phone records collection.

"Government actions that violate the constitution cannot be tolerated and Congress must act to ensure the NSA and the intelligence community permanently cease such acts and hold the appropriate individuals accountable," Issa wrote to House majority leader Eric Cantor on Tuesday.