The NSA's PRISM program unlawfully gathered "tens of thousands" of emails and other communications in a surveillance sweep described as "fundamentally different" to what courts had approved, according to a newly-declassified FISA court opinion. The 2011 ruling by John D. Bates, chief judge of the Foreign Intelligence Surveillance Court responsible for green-lighting monitoring, slammed the National Security Agency for misleading on what, exactly, it was collecting, the Washington Post reports, after the Electronic Frontier Foundation petitioned to have the document released.
Until 2011, the NSA's own calculations suggest, the agency could have been unlawfully collecting up to 56,000 electronic "wholly domestic" communications each year. The agency's remit allowed it to collect and store communications with a foreign component that pass through US connections, not those which are solely from within the US.
The discovery that that had not been the case was actually identified by the NSA itself. Judge Bates writes in the ruling that the NSA "advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe" and thus ruled it unconstitutional.
Since that point, the NSA has apparently changed its policies to avoid the same mistake happening again, though it took until 2012 before the agency actually deleted any of the domestic content it had unlawfully stored.
Nonetheless, the NSA is keen to convince observers that any impropriety was inadvertent, not deliberate. "This was not in any respect an intentional or wholesale breach of privacy of American persons,” general council for the Office of the Director of the NSA Robert S. Litt III said today.
The protestations are unlikely to convince privacy advocates to any great extent, however, and neither is the heavily-redacted document. The Electronic Frontier Foundation has already said it intends to continue the pressure on the US government to assign specific blame, among other things, to those who knew the surveillance was taking place.
"EFF will keep fighting until the NSA's domestic surveillance program is reined in," the EFF's Mark Rumold said today, "federal surveillance laws are amended to prevent these kinds of abuse from happening in the future, and government officials are held accountable for their actions."