Analysts within the National Security Agency “potentially” violated the law by improperly failing to delete information collected about people on the Internet, the federal court overseeing U.S. intelligence agencies declared in an opinion declassified on Tuesday.
A judge on a secretive federal court was “extremely concerned” that the NSA’s continued to hold on to data that it was supposed to delete, he wrote in the November 2015 opinion.
By maintaining retention of the information, the spy agency violated “several provisions” of its internal policies, and was “potentially” in violation of the law, Judge Thomas Hogan of the U.S. Foreign Intelligence Surveillance Court (FISC) claimed in the heavily redacted order.
In addition to the infractions by the NSA, officials at the FBI also failed to abide by protections designed to protect attorney-client privileges in an unidentified number of cases discovered in 2014 and 2015, Hogan claimed.
The violations were contained in an 80-page order declassified by the Office of the Director of National Intelligence on Tuesday.
The shadowy FISC always meets behind closed doors and is tasked with overseeing operations at U.S. intelligence agencies.
In a statement releasing the decision and two other orders from the FISC on Tuesday, the nation’s top spy office suggested that the violations were the result of miscommunication.
“The government has informed the court that there was no intent to leave the FISC with a misimpression or misunderstanding, and it has acknowledged that its prior representations could have been clearer,” the Office of the Director of National Intelligence claimed.
Unless it has been designated for retention, the NSA is supposed to delete data picked up on the Internet within two or five years, depending on the means through which it was collected.
But in a notice to the FISC last July, the government said that it was retaining some data on two systems used by the spy agency for longer. According to the court opinion, the NSA claimed that it was keeping the data for “collection avoidance” and to comply with other procedures.
The court had previously demanded that the NSA get rid of data in a similar situation in 2010 and 2012, and “it would be difficult to conclude” that the ruling did not also apply in the July, 2015, case, Hogan claimed.
“Perhaps more disturbing and disappointing than the NSA’s failure to purge this information for more than four years, was the government’s failure to convey to the court explicitly during that time that the NSA was continuing to retain this information,” he wrote.
The topic was discussed at a secret Oct. 8 hearing, and the government soon after pledged to comply with some procedures it had violated.
Separately, the Hogan claimed to have been “extremely concerned” about some of the cases in the FBI's situation, which appeared to signal some agents’ confusion about the rules they needed to have in place to protect attorney-client privileges.
In October, the government promised to take additional steps to fix the problems, which “satisfied” the judge.