Obama declassifies secret NSA order

The Obama administration has declassified a court order that allowed the National Security Agency to collect records on the Internet activities of millions of Americans.

The Foreign Intelligence Surveillance Court (FISA court) opinion permitted the NSA to collect records such as the “to” and “from” in emails as well as the time and date of emails. The order did not allow the NSA to collect the contents of any communications.

The government blacked out the date of the order, which was issued by Judge Colleen Kollar-Kotelly. Previously released court documents had referenced the bulk collection of Internet data, but the original court order had remained secret until now. The administration has said it discontinued the program in 2011. 

{mosads}The director of national intelligence released the court order late Monday, along with hundreds of pages of other documents. 

At some point following the original court order, the NSA informed the court that officials had inadvertently violated privacy restrictions and overcollected data under the program.

The agency said the overcollection was the result of poor communication within the agency, not any technical problems or deliberate abuse. 

In a subsequent opinion, Judge John Bates scolded the NSA for “systemic overcollection” and a “history of material misstatements” to the FISA court. 

He wrote that for an extended period of time, “virtually every … record generated by this program included some data that had not been authorized for collection.”

But Bates ultimately approved the NSA’s request to continue the program.

In a statement, the Office of the Director of National Intelligence said that in 2011, the NSA reviewed the Internet data collection program and determined that it “was no longer meeting the operational expectations that NSA had for it.” 

“Accordingly, after careful deliberation, the Government discontinued the program,” the office said.

The Internet data collection program was similar to the NSA’s still-operational bulk collection of phone records. Both programs involve the collection of records (but not the contents of communications) on millions of people not suspected of any wrongdoing.

The FISA court imposed restrictions on both programs, such as only allowing NSA analysts to access the vast databases if they had a “reasonable, articulable suspicion” that a target was related to terrorism.

The phone record collection is conducted under Section 215 of the Patriot Act: “the business record” provision. But the Internet data collection was conducted under Section 402 of FISA: the “the pen register and trap and trace” provision. 

Law enforcement agencies have long used “pen register and trap and trace” devices to log incoming and outgoing phone numbers, but the system had never been used to collect Internet data on millions of people.

In her original opinion authorizing the Internet data collection, Judge Kollar-Kotelly acknowledged that she was agreeing to a “much broader type of collection” than the technique typically allows. 

Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, and Rep. James Sensenbrenner Jr. (R-Wis.), the original author of the Patriot Act, are leading a push in Congress to end the NSA’s bulk collection of records. 

The government also released a trove of documents from the Bush administration, including the original 2006 request for the bulk phone data program.

In a statement, Director of National Intelligence James Clapper said he decided to release the documents to comply with President Obama’s directive to be more transparent about the surveillance programs. 

“Release of these documents reflects the Executive Branch’s continued commitment to making information about this intelligence collection program publicly available when appropriate and consistent with the national security of the United States,” he said.