2009 Order From FISA Court Slams NSA Data Collection Practices Over a Three-Year Period

According to newly declassified documents, a Foreign Intelligence Surveillance Court judge slammed the National Security Agency in 2009 for what he called "flagrant violations" of the privacy rights of U.S. citizens over a three-year period of searches of telephone records. The now declassified documents that brought this information to light were released on Tuesday in response to a California lawsuit filed by the EFF after details of a massive surveillance program were leaked by former NSA contractor Edward Snowden.

The documents included a top secret order from the FISA court dated Jan. 28, 2009 signed by Foreign Intelligence Surveillance Court Judge Reggie Walton. In it Judge Walton hammered on government lawyers for "what appears to be a flagrant violation" of a court order to protect the privacy rights of U.S. citizens. The violation relates to an NSA "alert list process" that the agency developed to pull up telephone identifiers that met a "reasonable articulable suspicion" standard.

Violations of that NSA standard continued from May 2006 to January 2009 on a "daily basis," according to Judge Walton.

In the five-page order from late January, Judge Walton demanded that someone with the "authority to speak on behalf of the Executive Branch" answer what caused the violations in question and how long they had been occurring. In response to Judge Walton's request, the government submitted a 110-page report on Feb. 12, 2009 acknowledging that it lacked a "shared understanding" of the program.

Judge Walton's order responding to the government's report dated March 2, 2009 noted that only 1,935 of the 17,835 identifiers on the alert list met the reasonable suspicion standard. Despite this, Judge Walton allowed the program to continue based on "the government's repeated representations" that the metadata collection "is vital to national security."

The Electronic Frontier Foundation issued a statement on Tuesday calling the documents a "breathtaking admission: the NSA's surveillance apparatus, for years, was so complex and compartmentalized that no single person could comprehend it."

American Civil Liberties Union's staff attorney Alex Abdo said in a statement, "The documents provide further evidence that secret and one-sided judicial review is not an adequate check on the NSA's surveillance practices."

"The so-called 'compliance incidents' are troubling, but this is a program that should never have been authorized to begin with," Abdo said. "The NSA should end the bulk collection of information about Americans."

He is one of the lawyers fighting a separate lawsuit in Manhattan that calls for an injunction to halt the NSA's massive data collection program and that collected data be purged.

Source: Courthouse News


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