Court: NSA collected domestic emails, violating the Constitution

The Obama administration on Wednesday revealed that the National Security Agency (NSA) improperly collected emails from people in the United States with no connection to terrorism beginning in 2008.

The NSA collected as many as 56,000 emails from Americans before the mistake was identified.

The Foreign Intelligence Surveillance Court concluded that the surveillance was unconstitutional after it was notified of it in 2011. In an 86-page opinion that was declassified on Wednesday, the court ordered the NSA to take steps to limit the information it collects and how long it keeps it.

In the opinion, Judge John D. Bates admonished the NSA for a " substantial misrepresentation" of the scope of its surveillance.

Officials said the surveillance was inadvertent, and insisted that the agency ended it in 2011.


"This is not an egregious overreaching by a greedy agency seeking to spy on Americans," a senior intelligence official said Wednesday during a conference call with reporters. "This is a technological problem that resulted in an inadvertent collection of a relatively small number of U.S. person communications." 

The NSA deleted the improperly collected data, and the court has since approved new surveillance standards, according to Director of National Intelligence James Clapper.

The court opinion also references two other NSA privacy violations from 2009. One of the violations involved the agency's bulk collection of phone data, while the other involved the now-discontinued bulk Internet data program.

The opinion reveals few details about the 2009 violations, but in a statement, Clapper said they were unintended and involved "gaps in technical understanding." He added that the violations were "promptly reported to the FISA court and Congress and have since been resolved."

The administration released the court opinion after receiving a Freedom of Information Act request from the Electronic Frontier Foundation.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the NSA to obtain, with a court’s approval, the contents of phone and email conversations if there is a "foreign intelligence purpose" and the target is "reasonably believed" to be outside of the country. The provision does not allow the agency to spy on communications that are wholly within the United States.

Officials said the specific glitch that allowed wholly domestic communications to be pooled into the NSA surveillance was tied to the agency's "upstream collection" operations.

Upstream collection is when intelligence analysts intercept e-mails as they move across computer networks. The NSA obtains much of its data by forcing communications providers to turn over their data.

"It's like a screenshot," an official said, explaining how intelligence officials intercept messages in upstream collection operations. Nearly 10 percent of all intelligence gathered under Section 702 operations is derived from upstream collections.

The problem is that in some intercepted messages, the so-called screenshots included e-mails and information of U.S. citizens alongside the addresses of foreign suspects targeted by the NSA and the intelligence community.

The inadvertent collection of data on U.S. citizens was due to a technological glitch in the NSA's collection system, according to the official.

"It was technically impossible to keep this from happening," the official said.

"Anytime you have a large, technically-complex [operation] . . . there will be mistakes. There will be errors," the official added.

The Obama administration has been struggling to quell growing outrage over the NSA's surveillance activities.

Polling has shown that Obama's popularity has slipped, especially with young voters, since leaks earlier this summer began revealing the scope of the NSA programs.  

Obama announced a series of steps earlier this month aimed at improving transparency and oversight of the surveillance. He insisted the programs are critical to national security, but acknowledged that changes might be necessary to restore the public's confidence.

The latest documents about the NSA were released on a new government Tumblr site, "IC on the Record," devoted to providing more information about the surveillance programs. Obama announced that the government would create a website for surveillance information in his speech on the programs earlier this month.

The disclosures come one day after a Wall Street Journal report indicated that the surveillance is much broader than initially believed, and that the NSA's programs cover 75 percent of U.S. Internet traffic.

But on the conference call with reporters, intelligence officials repeatedly declined to discuss the Wall Street Journal report or explain how much Internet traffic the NSA accesses.

"We're really here to talk about the documents that are being released today, not the Wall Street Journal article yesterday," an official said.

— This story was last updated at 6:10 p.m.