According to an opinion of the Foreign Intelligence Surveillance Court, released on Wednesday, August 21st, the NSA told the secret court for three years that it was collecting “discrete” Internet communications about terrorists and spies, and not snooping on ordinary Americans. That turned out to be untrue, in fact the NSA was scooping up tens of thousands of Americans’ emails, while assuring the court no such thing could possibly be happening.
“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,” wrote Judge John Bates of the Foreign Intelligence Surveillance Court on October 3, 2011.
This was not the first time the court had been misled by NSA. The court wrote: ”The Court is troubled that the government’s revelations … 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.”
The NSA was grabbing what the agency described as whole “transactions,” of emails that were neither to, from, nor about the intended target. Email communications travel the Internet as a single communication: “For technological reasons, the NSA was not capable of breaking those down, and still is not capable, of breaking those down into their individual components.”
The court wrote ”That revelation fundamentally alters the Court’s understanding of the scope of [NSA's] collection… and requires careful reexamination of many of the assessments and assumptions underlying its prior approvals.”
According to CNN, other FISA Court opinions from November 2011 and September 2012 covered NSA steps to fix errors it made in over-collecting data and to purge data it shouldn’t have collected. Those rulings indicated that the matter had been resolved.
The documents were released as a result of Freedom of Information Act litigation by the Electronic Frontier Foundation. EFF wrote: “EFF can declare victory: a federal court ordered the government to release records in our litigation, the government has indicated it intends to release the opinion today, and ODNI has called a 3:00 ET press conference to discuss “issues” with FISA Amendments Act surveillance, which we assume will include a discussion of the opinion.”
Reason, writing about the press conference commented, “Hilariously, ODNI arranged for a background media call to take questions from reporters, but they did it before the documents were released so nobody could ask any directly relevant questions from what the documents actually said. (Somebody posted the press call online on Soundcloud if you’re feeling particularly masochistic).”