In a small step to improve transparency, the U.S. government has released a two-year-old opinion by its secret Foreign Intelligence Surveillance Court revealing that “the National Security Agency unlawfully gathered tens of thousands of e-mails and other electronic communications between Americans” The Washington Post, Aug 22, 2013. Perhaps it was pushed to preempt Edward Snowden from doing so before it did. But it was also in response to a year old Freedom of Information lawsuit by the Electronic Frontier Foundation.
“It’s unfortunate it took a year of litigation and the most significant leak in American history to finally get them to release this opinion,” said foundation staff attorney Mark Rumold, “but I’m happy that the administration is beginning to take this debate seriously.”
In the October 3, 2011, opinion, John D. Bates, then the surveillance court’s chief judge, wrote: “The court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program…. NSA’s knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause of concern for the court.” Bates also noted that the court’s authorization of the NSA’s bulk collection of Americans’ phone-call records was “premised on a flawed depiction of how the NSA” uses the data. “This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and court-mandated oversight regime.”
That is a mouth full and it is encouraging that the government has finally shared the court’s opinion with the public. It is in sharp contrast with the disclaimers of any wrong doing it was issuing a few weeks ago.