E-Mails to Web Searches Taken Illegally, U.S. Court Found

Tens of thousands of Americans who sent e-mails from 2008 to 2011 had some of them scooped up by an unintended recipient: the National Security Agency.

The NSA intercepted as many as 56,000 electronic communications a year of Americans who weren’t suspected of having links to terrorism before a secret court found the operation unconstitutional in 2011, according to legal opinions that were declassified yesterday.

The finding raises new questions about President Barack Obama’s assurances that the NSA hasn’t been engaged in a “domestic spying program.” The disclosure also added to demands by members Congress for more oversight of the agency. Lawmakers have been preparing legislation that would curb U.S. surveillance operations for consideration when they return from a break next month.

Release of the documents “begins to appropriately draw back the curtain on the secret law of government surveillance,” Democratic Senator Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee, said yesterday in a statement. “They also underscore the need for increased oversight and stronger protections for Americans’ privacy.”

The NSA’s electronic-data collection was rejected in an Oct. 3, 2011, order by the Foreign Intelligence Surveillance Court.

The program intercepted tens of thousands of electronic communications by Americans, such as e-mails, along fiber-optic cables and networks that make up the Internet’s backbone in violation of a 2008 law, Judge John Bates wrote.

‘Fundamentally Different’

“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” Bates said in the ruling finding that the data collection wasn’t consistent with the Constitution’s Fourth Amendment protections against unreasonable searches and seizures.

The NSA revised the program, including installing a way to segregate the communications of Americans from those of foreigners suspected of terrorism. Bates approved the revisions in a Nov. 30, 2011, order that also was made public.

A separate “memorandum opinion” from the court that was declassified yesterday said the collection activity actually had been going on since 2006.

The extent of the NSA’s spying efforts has been the focus of controversy since its secret programs were made public by former agency contractor Edward Snowden.

‘No Spying’

Obama said on Aug. 6 that “there is no spying on Americans” by the government.

“What we do have are some mechanisms where we can track a phone number or an e-mail address that we know is connected to some sort of terrorist threat,” the president said on NBC’s “Tonight Show With Jay Leno.”

The court order on intercepted Internet communications was declassified yesterday by the Office of the Director of National Intelligence after it was described last week in a Washington Post report. That article, based on documents provided by Snowden, focused on a separate audit that found the NSA broke privacy rules thousands of times in a year.

Snowden, who faces U.S. espionage charges, has been granted temporary asylum in Russia.

The NSA acquired more than 250 million Internet communications each year under the program that was reviewed by the surveillance court, most of which were collected through Internet companies, according to the court order.

Upstream Collection

About 9 percent of those communications -- almost 23 million -- were collected “upstream,” a reference to the cables that comprise the Internet’s backbone, according to the order that found the collection illegal.

The 2008 law requires the NSA to obtain a warrant to collect the communications of Americans.

In one sample that the NSA gathered for the surveillance court in 2011, 996 to 4,965 of 13.5 million “Internet transactions” collected upstream over six months contained “a wholly domestic” communication, according to the order.

The NSA “knowingly acquires tens of thousands of wholly domestic communications each year,” said Bates, a U.S. district judge who was appointed to the surveillance oversight court by U.S. Chief Justice John Roberts.

The collection of innocent Americans’ records occurred by mistake because the agency pulled communications off the Internet backbone in bundles, Robert Litt, general counsel for the director of national intelligence, told reporters yesterday.

Shorter Retention

The NSA submitted its revised procedures to the court three weeks after the Oct. 3 order, according to an intelligence official who briefed reporters and asked not to be identified discussing the sensitive material.

Along with developing a procedure intended to segregate the communications of Americans not known to have links to terrorism, the NSA agreed to reduce the amount of time that communications collected off the Internet backbone are retained to two years from five, the official said.

The NSA also deleted all communications collected under the program before the Oct. 3, 2011, court ruling, Litt said.

“Mistakes and errors can and will happen,” Director of National Intelligence James Clapper said in a statement. “The government undertakes extraordinary measures to faithfully identify, record and correct its mistakes and to put systems and processes in place that seek to prevent mistakes from occurring in the first place.”

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