The Obama administration has insisted that the National Security Agency (NSA) only collects so-called metadata about Americans’ personal communications, which would mean, for example, the government only knew who emailed who, but not what was said in the emails. But a newly declassified court opinion reveals the NSA was rebuked for collecting thousands of American emails while misleading the court over what the NSA was really doing as part of its domestic eavesdropping programs.

The legal opinion, written in 2011 by Judge John D. Bates, then the chief judge of the Foreign Intelligence Surveillance Court (FISC), chided the government for misrepresenting the reach of its “upstream” Internet surveillance program between 2008 and 2011.

The collection was part of a program that allowed warrantless surveillance on domestic networks as long as the targets were noncitizens living abroad. But as it turned out, purely domestic messages were collected as well.

The NSA claimed it fixed problems with how it handled domestic messages swept up in the surveillance.

And yet, Bates went off in his opinion about the NSA’s spying.

 “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,” Bates wrote.

The judge also wrote in a footnote that in March 2009, the FISC learned that NSA analysts were using a phone log database in ways that went beyond what the judges believed to be the practice because of a “repeated inaccurate statements” in government filings to the court.

“Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the standard for querying,” Bates wrote. He cited a 2009 ruling that concluded that the requirement had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall ... regime has never functioned effectively.”

Senator Ron Wyden (D-Oregon), who sits on the Senate Intelligence Committee and has tried to declassify information showing the FISC had ruled that the NSA had violated the Fourth Amendment, said the declassification of the ruling was long overdue.

“The FISA Court has noted that this collection violates the spirit of the law, but the government has failed to address this concern in the two years since this ruling was issued,” Wyden told The Washington Post.

He added that the ruling “makes it clear” that Section 702 of the Foreign Intelligence Surveillance Act “as written, is insufficient to adequately protect the civil liberties and privacy rights of law-abiding Americans and should be reformed.”

-Noel Brinkerhoff

To Learn More:

Declassified Documents Prove NSA Is Tapping the Internet (by David Kravets, Wired)

Secret Court Rebuked N.S.A. on Surveillance (by Charlie Savage and Scott Shane, New York Times)

NSA Gathered Thousands of Americans’ E-mails before Court Ordered It to Revise its Tactics (by Ellen Nakashima, Washington Post)

Activist Court Decision Strips Civil Service Rights and Whistleblower Protections From National Security Positions (by  Angela Canterbury, Project On Government Oversight)

Memorandum Opinion (U.S. Foreign Intelligence Surveillance Court) (pdf)

How Extensive is NSA Phone and Internet Surveillance…The Latest Revelations (by Matt Bewig, AllGov)

NSA and FBI Secretly Mining Data from Internet Service Providers (by Noel Brinkerhoff, AllGov)