FRINFORMSUM 11/21/2013: It’s Complicated

NSA headquarters in Ft. Meade, MD.

New documents pried loose from the National Security Agency (NSA) by a FOIA lawsuit reveal that the NSA ‘repeatedly violated its own privacy guidelines in a now-defunct program to collect “to and from” data in American email.’ The Foreign Intelligence Surveillance Court (FISA) judge’s opinion on the program said that there had been “systemic over collection” in the email program and that “those responsible for conducting oversight at the NSA had failed to do so effectively.” In U.S. District Judge Colleen Kollar-Kotelly’s legal opinion that authorized the email program in the first place, Kollar-Kotelly said, “Americans did not have a reasonable expectation of privacy for their email and telephone metadata — information that shows who they are in contact with but not the content of their communications. Intelligence officials have compared metadata to the address written on the outside of a mailed envelope.”

Meanwhile, in the wake of Edward Snowden’s leaks about the NSA’s surveillance practices, the Director of National Intelligence’s general counsel compared NSA surveillance to glitches in the new health care website, claiming, “[c]omplicated technology systems frequently don’t work as they expect them to…Using the word “abuse” in the context of the operation of the surveillance program is a little bit like saying the Department of Health and Human Services is abusing people because of the fact that the Obamacare websites don’t work properly. They are complicated.”

Complicated or not, the NSA’s FOIA office is swamped with requests from individuals who want to know if the agency spied on them. The agency’s FOIA office reported an 888% increase in requests for the latest fiscal year, and is responding to all of them with form letter saying the NSA can neither confirm nor deny that any information has been gathered. Archive FOIA Coordinator Nate Jones says this huge spike “confirms that in the case of the NSA, leaks work. They don’t release anything through normal means. The only way the public really learns about them is through leaks.”

AG Holder has announced the DOJ will review all criminal cases that obtained evidence through warrantless wiretaps under the FISA. Photo: Matt Rourke/AP

The Supreme Court has ruled that the NSA may continue its surveillance of domestic telephone communication records, at least for the time being. The justices rejected the appeal, filed by the privacy rights group EPIC, without comment. The appeal was filed ‘directly with the high court, bypassing the usual step of going to the lower federal courts first. Such a move made it much harder for the justices to intervene at this stage, but EPIC officials argued “exceptional ramifications” demanded immediate final judicial review.’ On a related note, Attorney General Eric Holder has announced that the Department of Justice is reviewing all criminal cases that utilized evidence obtained by its “warrantless surveillance program and will be notifying defendants in some of those cases.”

Undeterred by the scrutiny the NSA is under, the CIA “is secretly collecting bulk records of international money transfers handled by companies like Western Union — including transactions into and out of the United States — under the same law that the National Security Agency uses for its huge database of Americans’ phone records.” The financial records program is overseen by the FISA court and authorized by the same provision in the Patriot Act as the NSA’s bulk surveillance programs, and is “evidence that the extent of government data collection programs is not fully known and that the national debate over privacy and security may be incomplete.”

Federal prosecutors have responded to rumors to the contrary by assuring that Julian Assange is not under sealed indictment. Photo: Tony Kyriacou/Rex Features

In other federal law enforcement news, a recent Foreign Policy article by Matthew Aid reveals how the FBI has aided the NSA in intercepting “the communications of all diplomatic missions and international organizations located on American soil. In some important respects, the FBI’s cryptologic work is more secretive than that being performed by the NSA because of the immense diplomatic sensitivity of these operations if they were to ever be exposed publicly.” Also at the FBI, the former bureau agent responsible for leaking secret information to the Associated Press (AP) about US operations in Yemen in 2012 has been sentenced to three years in process. The leak spurred the Department of Justice to seize months of AP journalists’ phone records in search of the source. In related news, federal prosecutors have assured that WikiLeaks founder Julian Assange is not under a sealed indictment, demonstrating that prosecutors are, for now, “drawing a distinction between those who were government employees or contractors and were required by law to protect classified information and those who received and published the material.”

Finally this week, the Pentagon reported that Guantanamo Bay detainees’ Periodic Review Board will be closed to the public, despite Defense Department deputy director of detainee affairs saying earlier the Pentagon was committed to “beginning the PRB process as expeditiously and transparently as possible.”

Happy FOIA-ing!