But the FISA court’s classified rulings have also been at issue in a year-old lawsuit filed against the government by the Electronic Frontier Foundation, an Internet civil liberties activist organization. In a decision in June, the FISA court ruled that its authority did not prevent the release of the earlier 2011 opinion.
A senior administration official acknowledged Wednesday that some of the documents released were in response to the lawsuit, while others were released voluntarily. The official insisted on anonymity because he was not authorized to discuss the release with a reporter by name.
The release Wednesday of the FISA opinion, two other 2011 rulings and a secret “white paper” on the NSA’s surveillance came less than two weeks after a federal judge in Washington gave government lawyers a time extension in order to decide which materials to declassify. The EFF had been pressing for a summary judgment that would have compelled the government to release the secret FISA rulings, and the government’s most recent extension expired Wednesday, the day it released the once-secret FISA court rulings.
“This was all released in response to the court’s orders,” said Mark Rumold, an EFF attorney involved in the litigation.
The documents were posted later in the day on a new website that went live Wednesday afternoon. The front page of the site said it was “created at the direction of the president of the United States (and) provides immediate, ongoing and direct access to factual information related to the lawful foreign surveillance activities carried out by the U.S. intelligence community.”
The site is hosted by the private Internet site Tumblr, a trendy blogging service which is particularly popular among teenagers and young adults.
While the NSA is allowed to keep the metadata — the address or phone number and the duration, but not the content, of the communication — of Americans for up to five years, the court ruled that when it gathered up such large packets of information, they included actual emails between American citizens, in violation of the Fourth Amendment.
Bates wrote that the NSA had advised the court that “the volume and nature of the information it had been collecting is fundamentally different than what the court had been led to believe,” and went on to say the court must consider “whether targeting and minimization procedures comport with the Fourth Amendment.”
For instance, two of the senior intelligence officials said, when an American logged into an email server and looked at the emails in his or her inbox, that screen shot of the emails could be collected, together with Internet transactions by a terrorist suspect being targeted by the NSA — because that suspect’s communications were being sent on the same fiber optic cable by the same Internet provider, in a bundled packet of data.
These interceptions of innocent Americans’ communications were happening when the NSA accessed Internet information “upstream,” meaning off of fiber optic cables or other channels where Internet traffic traverses the U.S. telecommunications system.
The NSA disclosed that it gathers some 250 million internet communications each year, with some 9 percent from these “upstream” channels, amounting to between 20 million to 25 million emails a year. The agency used statistical analysis to estimate that of those, possibly as many as 56,000 Internet communications collected were sent by Americans or persons in the U.S. with no connection to terrorism.
Under court order, the NSA resolved the problem by creating new ways to detect when emails by people within the U.S. were being intercepted, and separated those batches of communications. It also developed new ways to limit how that data could be accessed or used. The agency also agreed to only keep these bundled communications for possible later analysis for a two-year period, instead of the usual five-year retention period.
The agency also, under court order, destroyed all the bundled data gathered between 2008, when the FISA Court first authorized the collection under section 702 of the USA Patriot Act, and 2011 when the new procedures were put in place.
The court signed off on the new procedures.
White House spokesman Josh Earnest said the White House still contends there is no domestic surveillance program. He said the program is specifically to gather foreign intelligence.