FISA court found NSA spying program unconstitutional in 2011

Thanks to a Freedom of Information Act (FOIA) request by the Electronic Fronter Foundation (EFF), the Obama Administration released an October 2011 FISA court opinion determining that the National Security Agency (NSA) violated the Fourth Amendment through one of its surveillance programs:

The Obama administration has given up more of its surveillance secrets, acknowledging that it was ordered to stop scooping up thousands of Internet communications from Americans with no connection to terrorism — a practice it says was an unintended consequence when it gathered bundles of Internet traffic connected to terror suspects.
The NSA declassified three secret court opinions showing how it revealed to the Foreign Intelligence Surveillance Court that one of its surveillance programs may have collected and stored as many as 56,000 emails and other communications by ordinary Americans annually over three years. The court ruled the NSA actions unconstitutional and ordered the agency to fix the problem, which it did by creating new technology to filter out buckets of data most likely to contain U.S. emails, and then limit the access to that data — and destroy it every two years, instead of every five years, as mandated by the court for other U.S. records gathered by the NSA. The NSA still may retain Americans’ phone records and in some cases copies of their Internet traffic for five years or even longer in some circumstances.

We touched on this story yesterday, but it deserves more attention due to a few different factors.

The Obama Administration and intelligence officials are trying to spin the decision. In an effort to head off negative news stories, the Director of National Intelligence’s office held a conference call with reporters before the 2011 decision was released to the public.

They’ve emphasized that the retention of communications was incidental and that they’ve changed how they collect information. But the FISA court ruling condemns the NSA for violating its oversight requirements. What’s more, the court wasn’t even aware that the intelligence agency was collecting domestic communications, and this isn’t the first time that the court has mislead the court.

ABC News notes that DNI James Clapper said that the ruling was released in the “interest of increased transparency.” But if you look at the 85-page ruling, you can see that it’s heavily redacted.

The White House is still struggling to gain an advantage on the news reports about the NSA’s surveillance of American citizens, though unsuccessfully to this point. They still insist that they’re not spying on Americans while intelligence officials are saying, as mentioned above, that the collection of domestic communications is incidental.

In just the last week, we’ve found that the NSA is still breaking its own privacy rules and protocols and that the reach of these programs cover 75% of Internet communications and retains domestic emails. In other words, the amount of unintentional data may have dropped some, at least based on the stories, but the problem remains.

But that begs the question — if you know that these programs are running infringing upon constitutional liberties, even if accidentally, why are you still using them?

The argument is that they’re necessary to combat terrorism, but the provision of the PATRIOT Act used to justify these programs limits its use to actual investigations of terrorist activity. It was never intended — as Rep. James Sensenbrenner (R-WI), the author of the law, has said — to broadly surveil communications.

The White House would like nothing more than to see these stories go away because they can’t get a handle on the narrative, largely because they’ve been caught lying or making misleading statements about it on numerous occasions.

And through the course the nearly three months that the NSA has been in the news, President Obama’s poll numbers have dropped and it’s been a huge distraction from other policies the White House is trying to push. They don’t really want to change anything — they just want this to go away.

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