New Declassified Documents Show Inappropriate NSA Surveillance

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Kevin Lamarque / REUTERS

Director of National Intelligence James Clapper testifies before a Senate Intelligence Committee hearing on Capitol Hill in Washington on March 12, 2013

The National Security Agency collected tens of thousands of e-mails to or from Americans annually between 2008 and 2011, according to documents declassified on Wednesday, in an official admission that the U.S. government overstepped its authority to monitor solely foreign communications without a warrant.

The documents — previously secret rulings by the classified Foreign Intelligence Surveillance Court — show that over the course of three years, the NSA improperly collected the e-mails from “upstream” Internet monitoring under Section 702 of the Foreign Intelligence Surveillance Act. Upstream content is taken while transiting the Internet’s thruways of fiber-optic cable, as opposed to information gathered from Internet service providers at the virtual off-ramps. The agency discovered the problem in 2011, and unilaterally brought it to the attention of the court and congressional intelligence committees, officials said.

Intelligence officials said the improper collection was the result of a technological issue, and not an effort by the spy agency to reach into domestic communications. “This is not an egregious overreaching by a greedy agency seeking to spy on Americans,” one official said. “This is a technological problem.”

On a conference call with reporters, officials outlined how upstream communications are collected, saying it first flows from a targeted e-mail address that they believe to be linked to terrorist activity. “We can collect communications that are either to that e-mail address, from that e-mail address or mention that e-mail address,” the official said. In the case of browser-based e-mail services like Gmail and Hotmail, the official explained that the NSA would collect what amounts to a screenshot of the inbox that mentions the targeted address. The technology had no way of separating wholly domestic and foreign e-mails from the same collection.

The released documents show the court wasn’t concerned that the NSA was collecting the communications — just with how the agency was treating it. The court allowed the upstream collection to continue, but instituted tougher safeguards to prevent unauthorized use of the data and mandated that the records be destroyed sooner than other data collected. In a letter accompanying the release, Director of National Intelligence James Clapper revealed that the NSA now has over 300 personnel dedicated to ensuring that the surveillance programs comply with the law and court rulings — a fourfold increase in the past four years.

In the first six months of 2011, the NSA collected 13.25 million “Internet transactions” from the upstream surveillance, the court records show. The agency disclosed that it gathers in total about 250 million Internet communications each year, with only about 9% of those communications coming from “upstream” channels.

On the call, officials also announced the launch of a new website on the collection programs, a Tumblr page where the intelligence community plans to communicate with the American people about its surveillance efforts.