The FISA Court Knew the NSA Lied Repeatedly About Its Spying, Approved Its Searches Anyway

The US Foreign Intelligence Surveillance Court (FISC) is the secret authority that judges on whether or not surveillance actions conducted under programs like NSA's PRISM are constitutional. While the FISC has been accused of being a rubber stamp for the government, approving nearly all of its surveillance requests, it hasn't always been that way.

A secret court opinion from October 2011 that ruled the NSA's surveillance activities unconstitutional has finally been unveiled, thanks to a successful challenge by the Electronic Frontier Foundation. (Big internet high five to the EFF by the way.) The document is heavily redacted, but as it hinges on the NSA's data collection methods, it offers interesting insight.

For example, a footnote on page five explains that the "NSA's 'upstream collection' of Internet communications includes the acquisition of entire 'transaction[s]' [redacted]," and that "such transactions may contain data that is wholly unrelated to the tasked selector, including the full content of discrete communications that are not to, from, or about the facility tasked for collection."

So the NSA admittedly collected data from people that had no relation to any of its searches. That's no surprise. It is troubling that the above disclosures only came in a letter to the court on May 2, 2011, a month after proceedings started and the bulk of opening documents were presented.

That hints at the NSA trying to pull a fast one on the FISC which, again, is the agency's only oversight for secret surveillance. But hints aren't necessary when the FISC specifically calls out the government for lying, as it did in a stunning footnote on page 16. Credit to the EFF's Trevor Timm for first pointing it out:

In short, the FISC court specifically calls out the government for "disclosing a substantial misrepresentation"—lying, although it apparently wasn't perjury—of how large its spying activities were. But it gets even more explicit.

In a review of single-communication transactions and multi-communication transactions (MCTs)—the definition of "transaction" is redacted, but it appears to be a specific definition for communications the NSA might intercept—the FISC specifically notes that the NSA's "minimization procedures" to limit collection of unwanted data are not up to snuff.

Shockingly, the court notes on page 30 that the NSA "acquires more than two hundred fifty million Internet communications each year persuant to section 702, but the vast majority of these communications are obtained from Internet service providers and are not at issue" in this case. (The ISPs are redacted.)

From there, the court notes that the NSA's own review of its collected data included hundreds of communications that involved solely domestic recipients, which is wholly illegal even under the broad surveillance powers decreed by Section 702 of the FISA Amendments Act. A pair footnotes from page 35 explain:

We've learned in the past few months that the NSA has been conducting domestic surveillance for years, which is entirely illegal under the laws granting it power for warrantless surveillance in the first place. But what's truly shocking is that the secret court tasked with overseeing the legality of the NSA's operations knew it had  conducted overly-broad operations and had lied about it.

Yet even though the FISC wrote that it's concerned, it writes in its conclusion on page 78 that the "government's proposed application of NSA's targeting and minimization procedures to MCTs is consistent with the requirements of the Fourth Amendment."

The FISC did indeed rule part of the NSA's spying unconstitutional, saying that collection of MCTs in which the "active user" was not a tasked selector (an approved target) violates the Fourth Amendment. But that light declaration still leaves the NSA broad powers, especially when the court knew the agency wasn't forthcoming about its operations.

So what happened since this 2011 ruling, in which the FISC clearly acknowledges shady maneuvering by the NSA? It approved every single FISA application in 2011 and 2012.

@derektmead

For more on the state of surveillance:

Snowden Wasn't Lying: The NSA's XKeyscore Program Can Spy on Everything You Do Online

The Senators Fighting the NSA Say Security and Privacy Aren't Mutually Exclusive

The FBI Is Winning the Fight to Invade Your Online Privacy