The NSA’s Latest Attempt at Transparency Backfired

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Photo: Charles Dharapak

On Wednesday, the NSA declassified three secret court opinions about the unlawful surveillance of American's phone and Internet data, ostensibly as part of its effort to increase transparency. Once intelligence official told reporters the incident shows the NSA is diligent about policing itself, and the FISA court provides "vigorous" oversight, with another saying the documents should help explain "the reasons why people shouldn't go into a panic over articles they read in the press." Instead, news reports focused on the revelation that for three years, the NSA scooped up as many as 56,000 communications annually that were between Americans and had nothing to do with terrorism.

Information about the violation has been seeping out for some time, and it was described briefly in a recent Washington Post report on the NSA's thousands of privacy infractions. At issue was the NSA keeping whole bundles of communications that were trapped as the agency sifted through domestic Internet traffic, as part of the system exposed by The Wall Street Journal earlier this week. From 2008 to 2001 the agency held on to purely American communications, due to a technological issue that made it difficult to separate domestic and foreign data. When the NSA discovered the issue in 2011 it reported it to the FISA court.

In a strongly worded opinion declassified for the first time on Wednesday, John Bates, the court's chief judge, said that the practice was unconstitutional and complained that "the volume and nature of the information it had been collecting is fundamentally different than what the court had been led to believe." The NSA was ordered to destroy the bundled data, and worked with the court to develop new privacy protections.

Despite what some officials suggested, their motive behind releasing the documents wasn't purely to make the public more informed. Last summer, Senator Ron Wyden fought to declassify just the fact that the FISA court had ruled that the NSA violated the Fourth Amendment, prompting a lawsuit to obtain the ruling from the Electronic Frontier Foundation. In June, the court ordered that the 2011 opinion should be released.

Rather than praising the agency for eventually reporting its errors, some members of Congress said the documents prove that the surveillance system needs to be overhauled, and called for more hearings. Wyden called the release "long overdue," and said the documents show the current law "is insufficient to adequately protect the civil liberties and privacy rights of law-abiding Americans and should be reformed."