In a sweeping violation of court-imposed surveillance rules that went on daily between 2006 and 2009, the documents show the NSA tapped the bulk telephone records and compared them with thousands of others without “reasonable, articulable suspicion,” the required legal standard.
The NSA told the Foreign Intelligence Surveillance Court it misunderstood restrictions on accessing data once it was archived, but Judge Reggie B. Walton wrote in a March 2009 order that such an interpretation of the court’s orders “strains credulity.” He was so fed up with the government’s overreaching that he threatened to shutter the surveillance program.
After discovering government officials had been accessing domestic phone records without a sufficient connection to terrorism for nearly three years, the judge said in a blistering opinion that he had “lost confidence” in officials’ ability to legally operate the program.
Walton noted, for instance, that just 1,935 phone numbers out of 17,835 on a list investigators were working with in early 2009 met the legal standard.
The judge ordered the NSA to conduct an “end-to-end” review of its processes and policies while also ordering closer monitoring of its activities.
Later in 2009, a Justice Department lawyer reported to the spy court a “likely violation” of NSA surveillance rules. The lawyer said that in some cases, it appeared the NSA was distributing the sensitive phone records by email to as many as 189 analysts, but only 53 were approved by the spy court to see them.
Walton wrote that he was “deeply troubled by the incidents,” which he said occurred just weeks after the NSA had performed a major review of its internal practices because of the initial problems reported earlier in the year.
The judge said in November 2009 that on the same day the NSA counterterrorism office reminded employees they were not allowed to indiscriminately share phone records with co-workers — and one day after a similar reminder from the agency’s lawyers — an NSA analyst improperly shared information with colleagues who were not approved by the intelligence court to see it.