New documents show the agency missing a massive number of violations. And that’s before it set up a new program with virtually no oversight.
The notion that the National Security Agency could police its own internet dragnet program with minimal oversight from a secret court has long drawn scoffs from observers. Now it appears that skepticism was completely justified, following the release of a bunch of documents on the program earlier this month by the office of Director of National Intelligence James Clapper (ODNI), which came in response to a Freedom of Information Act request filed by the Electronic Privacy Information Center.
Exhibit A is a comprehensive end-to-end report that the NSA conducted in late summer or early fall of 2009, which focused on the work the agency did in metadata collection and analysis to try and identify people emailing terrorist suspects.
The report described a number of violations that the NSA had cleaned up since the beginning of that year — including using automatic alerts that had not been authorized and giving the FBI and CIA direct access to a database of query results. It concluded the internet dragnet was in pretty good shape. “NSA has taken significant steps designed to eliminate the possibility of any future compliance issues,” the last line of the report read, “and to ensure that mechanisms are in place to detect and respond quickly if any were to occur.”
But just weeks later, the Department of Justice informed the FISA Court, which oversees the NSA program, that the NSA had been collecting impermissible categories of data — potentially including content — for all five years of the program’s existence.
The Justice Department said the violation had been discovered by NSA’s general counsel, which since a previous violation in 2004 had been required to do two spot checks of the data quarterly to make sure NSA had complied with FISC orders. But the general counsel had found the problem only after years of not finding it. The Justice Department later told the court that “virtually every” internet dragnet record “contains some metadata that was authorized for collection and some metadata that was not authorized for collection.” In other words, in the more than 25 checks the NSA’s general counsel should have done from 2004 to 2009, it never once found this unauthorized data.
