Newly Released Documents Show NSA Abused Its Discontinued Internet Metadata Program Just Like It Abused Everything Else

from the so,-more-of-the-same,-then? dept

James Clapper’s office (ODNI) has released a large batch of declassified documents, most of which deal with the NSA’s discontinued Section 402 program. What this program did was re-read pen register/trap and trace (PR/TT) statutes to cover internet metadata, including sender/receiver information contained in email and instant messages. (Not to be confused with the Section 702 program, which is still active and harvests internet communications.)

Notably, this marks only the second time that the ODNI has acknowledged the document release has been compelled by a FOIA lawsuit.

Following a declassification review by the Executive Branch, the Department of Justice released on August 6, 2014, in redacted form, 38 documents relating to the now-discontinued NSA program to collect bulk electronic communications metadata pursuant to Section 402 of the FISA (“PRTT provision”). These documents are also responsive to a Freedom of Information Act request by the Electronic Privacy Information Center.

As EPIC’s site notes (and the ODNI’s doesn’t), the program was authorized in 2004, but no legal justification was provided to Congressional oversight until a half-decade later. Contrast that fact with the ODNI’s statement:

The information released on August 6, 2014, together with documents previously released, demonstrates the extent to which the IC sought and received FISC approval to collect electronic communications metadata under the PRTT provision, the oversight regime of internal checks over the program, and that Congress was kept fully apprised of the status of NSA’s electronic metadata collection.

Apparently, in intelligence jargon, “fully” is synonymous with “eventually.”

Despite the program being discontinued, the documents are still heavily redacted. For instance, in the original opinion and order that found the bastardized PR/TT compliant with the Fourth Amendment, the government’s description of “meta data” runs multiple pages, almost all of it covered in black. The government acknowledges the email metadata, but redacts everything else — including testimony given on record to legislators. Chris Soghoian of the ACLU easily found some of the redacted text elsewhere on the web.

So, the declassification review apparently decided the public shouldn’t know the NSA collected instant messaging with its discontinued program. Too bad it was discussed openly in a Senate hearing.

The government’s memorandum in support of this wide-open interpretation of PR/TT also contains an expansive redefining of the word “relevant.” As Marcy Wheeler points out, the administration and the DOJ stretch the definition to mean “almost all” and then pretend they’ve done nothing at all. (Wheeler also has posted two very informative posts with further details from the newly-released documents.) From the memo:

Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.

To the government, the most insanely expansive reading is the “best” reading. As Wheeler notes, this self-congratulatory paragraph is another example of why secret courts are dangerous.

This is why you should not have secret courts.

I get making an aggressive push to authorize dragnet surveillance.

I get mining old and foreign dictionaries to come up with a definition that suits your needs.

But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.

But it’s still, to this day, a secret court. And the documents released show it’s still a largely deferential court — one that actively allows the administration and the NSA to do its thinking for it. It’s never been an adversarial court and has only very rarely acted like it’s part of a system of checks and balances. In Judge Kollar-Kotelly’s long defense of mutating PR/TT into an internet metadata dragnet, she puts words in Congress’ mouth and removes potential roadblocks with alarming speed. Whatever slack the FISA Court fails to cut the administration, it cuts for itself. From the same memorandum quoted above:

Here, construing FISA to preclude the signals intelligence activities that the Executive Branch has concluded are vital to wartime defense of the Nation would raise a grave constitutional question about whether the statute, as so construed, impermissibly impinges on the President’s constitutionally assigned authorities as Commander in Chief and Chief Executive.

[…]

In almost all cases of potential constitutional conflict, if a statute is construed to restrict the Executive, the Executive has the option of seeking additional clarifying legislation from Congress. In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.

That’s the Executive Branch cutting the Legislative Branch out of the loop, and doing so with assistance provided by an offshoot of the Judicial Branch. That’s the vaunted oversight being kicked to the curb in order to oblige the NSA. The system of checks and balances apparently is unworkable during times of war.

All of this is unsurprising, given what we’ve learned about the FISA court over the past several months (as well as the government’s arguments in support of dragnet surveillance programs). Equally as unsurprising is the fact that the NSA immediately took this new program and abused it, just like it’s abused everything else it’s been entrusted with by the FISA Court.

A now-defunct National Security Agency (NSA) bulk collection program that collected information about online communications exceeded its authority, collected too much, and shared that information too freely, recently declassified court documents show…

The government, the document indicates, “acknowledges that NSA exceeded the scope of authorized acquisition continuously during the more than [redacted] years of acquisition under [the] orders.”

When not abusing the limits of the program to gather information it shouldn’t have had access to, the NSA was sharing its ill-gotten goods with other government agencies, ignoring its own rules about dissemination by distributing unminimized US persons’ data. But despite this evidence of wrongdoing, no one was punished and, in fact, the government didn’t even feel compelled to explain its actions to the court.

As was noted above, the supposed oversight that’s supposed to help prevent this sort of abuse wasn’t even apprised of the program until five years after the FISA court gave its approval. The documents forced out of the NSA’s hands by a handful of lawsuits clearly shows the agency can’t be trusted to police itself and isn’t interested in letting anyone else tackle that job.

Filed Under: colleen kollar-kotelly, fisa, fisa court, fisc, internet metadata, nsa, section 402, surveillance