The Director of National Intelligence (DNI) just today released hundreds of pages of documents related to the government's secret interpretation of Patriot Act Section 215 and the NSA's (mis)use of its massive database of every American's phone records. The documents were released as a result of EFF's ongoing Freedom of Information Act lawsuit.
We've posted links to each document below. While the government also posted many of the documents here, our copies are completely searchable.
Our legal team is currently poring over them and will have much more analysis soon, but intelligence officials held a call with reporters about the content of the documents this morning, and made several revealing comments.
First, intelligence officials said they were releasing this information in response to the presidential directive on transparency surrounding the NSA. That statement is misleading. They are releasing this information because a court ordered them to as part of EFF's Freedom of Information Act lawsuit, filed almost two years ago on the tenth anniversary of the Patriot Act.
In fact, up until the Snowden revelations started a couple months ago, the government was fighting tooth and nail to not only avoid releasing the content of the government's secret interpretation of the Patriot Act, but even the number of pages that were involved. The government argued releasing a single word of today's release would cause "serious and exceptionally grave damage to the national security of the United States."
As it's been clear to us and to an increasing percentage of the American public, making public how the government interprets our laws is not only NOT dangerous, but vital to our democracy.
Second, at least some of the documents relate to a "compliance issue" that was referenced in another FISA court opinion from 2011 that found some NSA surveillance unconstitutional, which released a few weeks ago as part of another EFF FOIA lawsuit.
According to intelligence officials, this FISA court opinion focuses on the NSA's use of an "alert list" which is a list of "phone numbers of interest" that they queried every day as new data came into their phone records database. The court had told the NSA they were only allowed to query numbers that had "reasonable articulable suspicion (RAS)" of being involved in terrorism. Apparently, out of the more than 17,835 numbers on this list in 2009, the NSA only had RAS for 1,935 of them.
The NSA apparently believed that it had the authority to search the telephone records database in order to obtain the 'reasonable articulable suspicion' required to investigate those numbers. Essentially, they were conducting suspicionless searches to obtain the suspicion the FISA court required to conduct searches.
Incredibly, intelligence officials said today that no one at the NSA fully understood how its own surveillance system worked at the time so they could not adequately explain it to the court. This is a breathtaking admission: the NSA's surveillance apparatus, for years, was so complex and compartmentalized that no single person could comprehend it.
The intelligence officials also acknowledged that the court has to base its decisions on the information the NSA gives it, which has never been a good basis for the checks and balances that is a hallmark of American democracy.
We also had hoped today's release would contain a 2006 opinion describing how the FISA court re-interpreted the word "relevant" to mean the NSA could collect information on hundreds of millions of innocent Americans who had never been involved in an investigation of wrong doing. We don't see that opinion in today's release, but expect to get it soon.
As we stated, we'll have much more on this soon.
Links to the documents:
- May 24, 2006 — Order from the Foreign Intelligence Surveillance Court
- December 12, 2008 — Supplemental Opinion from the Foreign Intelligence Surveillance Court
- January 28, 2009 — Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009 from the Foreign Intelligence Surveillance Court
- January 28, 2009 — Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009 from the Foreign Intelligence Surveillance Court - With Cover Letter and Attached Declarations
- February 26, 2009 — Notice of Compliance Incident
- March 2, 2009 — Order from the Foreign Intelligence Court
- June 22, 2009 — Order from the Foreign Intelligence Court
- June 25, 2009 — Implementation of the Foreign Intelligence Surveillance Court Authorized Business Records FISA
- August 19, 2009 — Report of the United States with Attachments and Cover Letter
- September 3, 2009 — Primary Order from the Foreign Intelligence Surveillance Court
- September 25, 2009 — Order Regarding Further Compliance Incidence from the Foreign Intelligence Surveillance Court
- November 5, 2009 — Supplemental Opinion and Order from the Foreign Intelligence Surveillance Court
Correction: This post originally reported that "out of the more than 17,000 numbers on this list in 2009, the NSA only had RAS for 1,800 of them." These numbers were inaccurate: of the 17,835 numbers, the NSA only had RAS for 1,935.