Under the Obama administration, the NSA and FBI illegally searched and disseminated raw intelligence on American citizens and failed to delete unauthorized intercepts, according to newly declassified documents obtained by the ACLU.
The memos were released to the public on July 11 via Freedom of Information Act litigation spearheaded by the ACLU and shed light on violations committed by the NSA and FBI during the whole span of Obama’s two terms, from 2009 to 2016.
ACLU chief legislative council Neema Guilani gives more detail on the release:
I think time and time again the NSA and the government has said “Look, we follow the law,” and what the documents show is that’s just not true. We’re seeing violation after violation of the terms of court orders and the terms of the surveillance laws that they’re expected to follow.
There are examples where they disseminated information about Americans in intelligence reports in a way that was improper. There are examples about cases where they kept communications that should have been purged. There are examples about cases where they searched for information about Americans in a way that was unlawful—and all of that, I think, points to what were now seeing, a history of the NSA not being able to police itself.
The NSA insists that its illegal collections are merely mistakes that account for only 1 percent of the agency’s phone and email intercepts carried out under the FISA Section 702 authorities, and that the agency has a robust compliance program in place that prevents abuses.
“Quite simply, a compliance program that never finds an incident is not a robust compliance program,” NSA chief spokesman Michael Halbig told the Hill. “The National Security Agency has in place a strong compliance program that identifies incidents, reports them to external overseers, and then develops appropriate solutions to remedy any incidents.”
Considering the astronomical number of NSA collections, however, the “1 percent” figure might not provide much comfort. In 2012, for example, using its Xkeyscore program the NSA collected some 41 billion records in a single 30-day period.
“Americans should be alarmed that the NSA is vacuuming up their emails and phone calls without a warrant,” said ACLU staff attorney Patrick Toomey, who helped push forward the FOIA litigation. “The NSA claims it has rules to protect our privacy, but it turns out those rules are weak, full of loopholes, and violated again and again.”
In May, another batch of unsealed documents obtained by journalists John Soloman and Sara Carter (then writing for Circa) revealed yet more NSA violations and abuses of the agency’s Foreign Intelligence Surveillance Act (FISA) authorities, illegally targeting American citizens in what is known as “upstream collection,” a form of surveillance of internet communications, and failing to purge information on Americans when it was swept up inadvertently.
Even after a rule change in 2011 explicitly prohibited the agency from using American “identifiers” when it searched its collections database, the NSA violated the rules routinely and extensively. What’s worse, the Obama administration knew of these abuses, but failed to disclose them until late 2016, only months before the president left office.
At a hearing in October 2016, the FISA court accused the administration of “an institutional lack of candor” regarding “a very serious Fourth Amendment issue” for failing to disclose the extent of the known abuses.
In the latest revelations, the newly discovered abuses include:
• Several improper searches of NSA foreign intercept data, including one case when an NSA analyst ran the same search on a particular American “every work day” for a period between 2013 and 2014.
• The illicit sharing of unredacted information regarding Americans within the intelligence community (particularly the NSA, FBI and CIA); the NSA was forced to recall and purge unmasked information numerous times.
• The NSA, by its own admission, moved slowly in notifying other intelligence agencies about its improper intelligence sharing, which by law the agency is required to do within five days. The agency’s average response time was 19 days, but in some cases it took as long as 131 business days.
• The misuse of “overly broad” search terms of NSA databases that would yield information on specific Americans.
• “Isolated incidents” when the NSA failed to comply with documentation requests justifying certain intercepts or collections.
• Failure to purge NSA databases of information it is not supposed to have in a timely manner.
The document release is just one in a long line of revelations regarding the abuse of mass, bulk-collection surveillance in the United States. While certainly not the first NSA whistle blower, Edward Snowden’s explosive 2013 document leak provided a virtual mountain of damning evidence against the U.S. intelligence community and its snooping into Americans’ lives. Since then, that mountain has only grown in size and scope, consistently showing more and more abuses and violations of the rights of Americans and the U.S. Constitution.