NSA gathered thousands of Americans’ e-mails before court struck down program

By Ellen Nakashima,

The National Security Agency unlawfully gathered as many as tens of thousands of e-mails and other electronic communications between Americans as part of a now-revised collection method, according to a 2011 secret court opinion.

The 86-page opinion, which was declassified by U.S. intelligence officials Wednesday, explains why the chief judge of the Foreign Intelligence Surveillance Court ruled the collection method unconstitutional.

“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” Judge John D. Bates, then the surveillance court’s chief judge, wrote in his Oct. 3, 2011 opinion.

In the opinion, Bates also expressed deep frustration with the government, saying that it had “disclosed a substantial misrepresentation regarding the scope of a major collection program” three times in less than three years.

Under the program, the NSA for three years diverted large volumes of international data passing through fiber-optic cables in the United States into a repository where the material could be stored temporarily for processing and for the selection of foreign communications, rather than domestic ones. But in practice, the NSA was unable to filter out the communications between Americans.

According to NSA estimates, the agency may have been collecting as many as 56,000 “wholly domestic” communications each year.

A month after the FISA court learned of the program in 2011 and ruled it unconstitutional, the NSA revised its collection procedures to segregate the transactions most likely to contain the communications of Americans. In 2012, the agency also purged the domestic communications that it had collected.

“This was not in any respect an intentional or wholesale breach of privacy of American persons,” Robert S. Litt III, the general counsel for the Office of the Director of the National Intelligence, said Wednesday.

Officials stressed that it was the NSA that brought the collection method to the court’s attention as part of its regular reporting process.

The Washington Post reported last week that the court had ruled the program unconstitutional. But the newly declassified opinion sheds new light on the volume of Americans’ communications that were obtained by the NSA, as well as the FISA court’s interpretation of the program.

In addition to the October 2011 court ruling, which was heavily redacted, U.S. intelligence officials on Wednesday released other documents, including a follow-up order about the NSA’s revised collection methods.

The documents were released in response to a Freedom of Information Act lawsuit filed by the Electronic Frontier Foundation.

“It’s unfortunate it took a year of litigation and the most significant leak in American history to finally get them to release this opinion,” EFF staff attorney Mark Rumold said Wednesday, “but I’m happy that the administration is beginning to take this debate seriously.”