In the controversy over the National Security Agency’s sweeping collection of information on the telephone calls and emails of American citizens, President Barack Obama has repeatedly said that Americans’ privacy is protected by “a whole range of safeguards.”
If only that were the case.
Chief among those supposed safeguards is oversight by a secret Foreign Intelligence Surveillance Court (FISC).
But the FISC has repeatedly caught the NSA providing misleading information and failing to follow the rules to safeguard privacy, though without bringing it to heel.
FISC Judge Reggie Walton, in an opinion chiding the NSA, wrote that the privacy safeguards “have been so frequently and systematically violated” that they “never functioned effectively.”
FISC decisions, the most recent of which was made public Tuesday, strongly undercut the president’s assurances. And they raise the odds that Congress will take much-needed action to curb NSA’s surveillance powers when the Patriot Act comes up for renewal next year — if not before.
The newly declassified decision, from 2009, concerns the NSA program for collecting so-called telephone “metadata,” consisting of the records of telephone calls made by Americans. The data includes the telephone number from which a call is made and the number called, but does not include the content of the call. The law allows the NSA to demand this data from telephone companies and keep it for five years.
Privacy protections allegedly built into the program limit NSA analysts from querying the database unless they have a “reasonable, articulable suspicion” that one of the parties in a call is engaged in terrorism.
But the FISC discovered that fewer than 2,000 of the nearly 18,000 numbers on the so-called “alert list” of suspected terrorists in 2009 met that test.
Judge Walton accused the NSA of misleading the court about the operations of the program:
“The government has compounded its noncompliance with the court’s orders by repeatedly submitting inaccurate descriptions of the alert list process. ... It has finally come to light that the FISC’s authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses” the information.
The decision, originally classified top secret, was made public by the Office of the Director of National Intelligence.
An unnamed official told The New York Times that the abuses were unintentional, were disclosed to the court and Congress by the agency, and were followed by more stringent safeguards.
But this is not an isolated case, as shown by other FISC decisions accusing the NSA of providing misleading information to the court.
Senate Judiciary Chairman Patrick Leahy, D-Vt., rightly said the FISC has disclosed “systemic problems” with the NSA’s metadata collection.
It’s time to hang up the phone on this intrusive program.
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