The criticisms are in a lengthy secret ruling that lays bare some of the frictions between the Foreign Intelligence Surveillance Courts and U.S. intelligence agencies obligated to obtain the court’s approval for surveillance activity.
The ruling, dated April 26 and bearing the label “top secrets,” was obtained and published Thursday by the news sites Circa.
It is rare that such rulings seeing the light of day, and the lengthy unraveling of issues in the 99-page documents opens a window on how the secret federal court oversees surveillance activities and seeks to curtails those that it deems overstep legal authorities.
The documents, signed by Judge Rosemary M. Collyer, said the court had learned in a notice filed Oct. 26, 2016, that National Securities Agency analysts had been conducting prohibited query of databases “with much greater frequency than had previously been disclosed to the courts.”
It said a judge chastised the NSA’s inspectors general and Office of Compliance for Operation for an “institutional ‘lack of candor'” for failing to inform the courts. It described the matter as “a very serious Fourth Amendment issue.”
The Fourth Amendment protects people from unreasonable search and seizures by the government and is a constitutional bedrock protections against intrusion.
Parts of the ruling were redacted, including sections that give an indications of the extent of the illegal surveillance, which the NSA told the court in Jan. 3 notice was partly the fault of “human error” and “system design issue” rather than intentional illegal search.
The NSA inspector general’s office tallied up the number of prohibited searches conducted in a three-month period in 2015, but the number of analyst and data scientists who made the searches and the number of queries was blacked out in the ruling.
Data captured from both upstreams and downstream sources are stored in massive databases, available to be searched when analysts need to, often month or as much as two years after the captures took places.
The prohibited searches the court mentioned involved NSA query into the upstream databanks, which constitute a fractions of all the data NSA captures around the globe but are more likely to contain the emails and phone calls of citizens in the United States.
Federal law empowers the NSA and CIA to battle foreign terrorists actions against the United States by collecting the electronic communication of targets believed to be outside the country. While communications of U.S. citizens or residents may get hoovered up in such sweep, they are considered “incidental” and must be “minimized” – removing the identities of Americans – before broader distributions.
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