NSA Engaged In Privacy-Violating Searches Of Domestic Metadata For Three Straight Years

from the oh-yeah,-LOTS-of-violations-'under-this-program' dept

One of the more surprising documents to be declassified as a result of the EFF and ACLU's lawsuits against the government is an opinion issued by FISA Judge Reggie Walton in which he excoriates the NSA for playing fast and loose with the rules governing its data collections.

The minimization procedures (another declassified document) clearly spell out the limitations and rules surrounding both the collection procedures and the searching of archived data. Judge Walton discovered the agency had been skirting the "reasonable and articulable suspicion (RAS)" limitations on a regular basis and understandly was a bit irritated by the ongoing abuse.

The NSA breached the protective rules by creating an "Alert List" to be used to check identifiers against incoming business record (BR) metadata. The original Alert List process was actually court-approved in 2006, but as time went on, the list expanded to include all foreign and domestic identifiers, which made most of its access to the domestic metadata non-RAS. This clearly violated the minimization procedures that were put in place to ensure minimal privacy violations.

The NSA (via a statement by General Alexander) admitted to violating these limitations but claimed it had misunderstood the minimization procedures and felt the search restrictions only applied to archived data. Walton didn't buy this argument, stating that the government's interpretation of the minimization procedures "strains credulity."

He went further, pointing out that allowing the identifiers to be used on non-archived data isn't simply a matter of a "terminological misunderstanding," but rather a deliberate decision to treat incoming data like other data collected by other NSA programs -- programs not subject to the FISA Court's minimization instructions.

Even worse, the NSA had "compounded" the problem by "repeatedly submitting inaccurate descriptions of the alert process to the FISC." Astoundingly, these "inaccuracies" traced all the way back to 2006, shortly after the minimization procedures were implemented.

What this all adds up to is three straight years of the NSA abusing the bulk records system to access and search domestic phone data, in clear violation of the safeguards meant to protect US citizens. Yet again, we get to see what the NSA actually does in contrast to what it claims it's limited to doing. And yet again, we see that words like "oversight," "procedures" and "minimization" are just as meaningless as other words from the NSA lexicon like "relevant" or "authorized."

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  1. identicon
    Patrick, 10 Sep 2013 @ 5:43pm

    When are we going to hear about voting machine manipulation.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 10 Sep 2013 @ 5:44pm

    Am I to understand that the FISA Court is not under the operational control of the NSA?

    reply to this | link to this | view in thread ]

  3. icon
    Peter (profile), 10 Sep 2013 @ 6:04pm

    Well, at least one person is not, at least not "wittingly"... Anyway, the FISA court is waking up finally, which is hopeful.

    reply to this | link to this | view in thread ]

  4. identicon
    Pixelation, 10 Sep 2013 @ 6:05pm

    "Judge Walton discovered the agency had been skirting the "reasonable and articulable suspicion (RAS)" limitations on a regular basis and understandly was a bit irritated by the ongoing abuse. "

    "A bit irritated" Hey Judge Walton, irritation means nothing. Throw someone in jail. Nothing else will make any difference.

    reply to this | link to this | view in thread ]

  5. icon
    That Anonymous Coward (profile), 10 Sep 2013 @ 6:13pm

    Congress is more afraid of pissing off the corporate sponsors, than the American public.
    People called to testify LIED to their faces.
    Lied in reports.
    And Congress won't do a damn thing.

    Other people come forward and tell the truth, and Congress demands they be executed with drone strikes, executed, or jailed forever.

    Can we just for once stop playing the red team blue team games and accept that both sides are screwing us, and we need to take all of them out of the game. That the new team needs to punish the old players and make sure the old playbook is burned.

    That we make changes to stop this from happening again (nothing is 100% but maybe doing more than fuckall will be enough.)

    Those 'backwards' 3rd world nations where people don't have rights like us 'Free' Americans... we are one now.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 10 Sep 2013 @ 7:43pm


    I suggest that the court has never been asleep, as evidenced in part by the cited court document, which was signed March 2, 2009.

    I believe, however, it would be fair to say that the ability of the court's judges to delve into "nitty gritty" details is hampered by how the court has been structured, i.e., what is essentially an ex parte forum.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 10 Sep 2013 @ 8:39pm

    See the Manning article lower down. If they want the reasoning to do a search of the database, they can simply create it.

    So to search everyone on Techdirt, all they need to do is post a threatening comment on Techdirt, then investigate this 'terrorist' threat to a depth of 3 (i.e. everyone and their connections).

    Since the data is already there, nothing stops them.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 10 Sep 2013 @ 10:07pm

    The courts can't top the runaway NSA train. The only thing that's going to stop that train, is a catastrophic derailment.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 10 Sep 2013 @ 10:08pm

    The courts can't stop the runaway NSA train. The only thing that's going to stop the NSA train, is a catastrophic derailment.

    reply to this | link to this | view in thread ]

  10. icon
    Mega1987 (profile), 10 Sep 2013 @ 10:27pm

    Any bets that NSA is trying to assemble a jigsaw puzzle of the map of the world using jigsaw pieces from other sources that does not even fit to the puzzle even?

    reply to this | link to this | view in thread ]

  11. icon
    pesti (profile), 11 Sep 2013 @ 12:03am


    The only chance we have of fixing any of this and the rest of the police state BS thats smothering our constitution is to start by reigning in congress. Here's an interesting item I got in an Email the other day........

    *Congressional Reform Act of 2013

    1. No Tenure / No Pension.

    A Congressman/woman collects a salary while in office and receives no pay
    when they're out of office.

    2. Congress (past, present & future) participates in Social Security.

    All funds in the Congressional retirement fund move to the Social Security
    system immediately. All future funds flow into the Social Security system
    and Congress participates with the American people. It may not be used for
    any other purpose.

    3. Congress can purchase their own retirement plan, just as all Americans

    4. Congress will no longer vote themselves a pay raise. Congressional pay
    will rise by the lower of CPI or 3%.

    5. Congress loses their current health care system and participates in the
    same health care system as the American people.

    6. Congress must equally abide by all laws they impose on the American

    7. All contracts with past and present Congressmen/women are void
    effective 12/31/13. The American people did not make this contract with

    Congressmen/women made all these contracts for themselves. Serving in
    Congress is an honor not a career. The Founding Fathers envisioned citizen
    legislators, so ours should serve their term(s), then go home and back to work.

    When I got done reading this I wanted to make a thousand copies and plaster them all over town

    reply to this | link to this | view in thread ]

  12. identicon
    Some Guy, 11 Sep 2013 @ 12:39am

    Are these assholes even remotely capable of telling the truth even once? Ever? They probably buy their own BS to the point they don't even know the truth. When Old Yeller went rabid, he couldn't be saved. At this point I think the NSA is a rabid dog and should be de-funded immediately, and replaced with an organization capable of candor. A little bit of accountability would be nice also.

    reply to this | link to this | view in thread ]

  13. identicon
    PlayNicely, 11 Sep 2013 @ 2:39am

    Re: Re:

    Actually I doubt that restricting the income and priviliges of Congresspeople is the way to go. That it should and will consist of honest "hard working" people is a romantic ideal that doesn't even seem to be all that desirable (being both unrealistic and populistic). I'd rather have a Congress full of people who have their financial worries taken care of by the state and who in return are strictly forbidden from receiving any substantial benefits (monetary or otherwise) in any other way. Going "back to work" after retiring from office, (aka "the revolving door") is part of the problem to begin with. Increasing the pressure on legislators to find benefactors in order to secure their financial future is not a sound strategy.

    If you want to fix Congress (and yes, i agree it needs fixing) start by changing the voting system:

    Replace first-past-the-post by a proportional method (thereby getting rid of Gerrymandering and allowing "tactical" voters to break out of the red-team-blue-team-pattern).

    Ideally make it so that a set number of votes gives one seat in the House of Representatives (i.e. 0.5M votes = 1 Seat), excess votes for any Representative going towards the elected Representative's chosen List of fellow Candidates (possibly party Lists, but conceivably Lists of other groups of like-minded Candidates) to fill their vote to the required threshold. Thus almost no vote is lost, no vote counts more than another and no Gerrymandering is possible.

    Next have the President elected by popular vote, abolishing the Electoral College. Battleground states and the indirection layer of electors are anachronistic and undemocratic. Perhaps make it a two-tier vote (the first tier to determine the two final Candidates, the second tier to determine the president among those two) to minimize the issue of tactical voting that would result from a 1-tier-system.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 11 Sep 2013 @ 3:25am

    something i find incredulous is how the various committees and courts seem to be allowing the various security agencies and the heads of those agencies get away, basically scot free, simply because the term 'unintentional' is used! what absolute bollocks! there is virtually nothing done by these agencies that wasn't/isn't intentional! what would happen if someone was taken to court for committing a crime and the excuse used was 'i didn't do it intentionally'? he'd get a longer sentence than what he was going to get, just for being a smart ass!!

    reply to this | link to this | view in thread ]

  15. icon
    Anonymous Howard (profile), 11 Sep 2013 @ 3:27am


    No need, when both major parties respond to the same entities in the background. Keep up the facade of free elections and democracy..

    reply to this | link to this | view in thread ]

  16. icon
    JTReyn (profile), 11 Sep 2013 @ 4:00pm

    SPIES GONE WILD - The Sequel

    The news out of NSA just keeps getting worse. This is "SPIES GONE WILD" the sequel. In view of these depressing revelations, we can only do what we little we can do to protect what's left of our privacy.
    Encryption won't keep NSA out entirely, but it will make it harder for them to pick us out of the crowd. Decrypting still takes extra time & effort and that little bit of hassle may be enough to keep their noses out of your business.
    The same goes for storing stuff on Dropbox, iCloud, etc. Take it down and stash everything in a CloudLocker (www.cloudlocker.it), which works just the same but it's private and stays in your home where they still need a warrant to see inside.

    reply to this | link to this | view in thread ]

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