NSA violations of FISC metadata orders

Reported queries with non-RAS-approved numbers

On March 28, 2014 in response to a FOIA request by the EFF, the DNI released a “reprocessed,” redacted version of a FISC Order from March 2, 2009 that the DNI had originally released on September 10, 2013. Order, In re Production of Tangible Things From [Redacted]. BR 08-13 (FISC Mar. 2, 2009). In the Order, Judge Reggie B. Walton found that “since the earliest days of the FISC-authorized collection of call-detail records by the NSA, the NSA has on a daily basis” used an alert list containing thousands of telephone numbers, for which the requisite reasonable articulable suspicion (“RAS”) had not been found to exist, to query the telephony metadata database. Judge Walton stated that “[s]uch access was prohibited by the governing minimization procedures under each of the relevant Court orders, as the government concedes ….,” and further found that “[t]he government has compounded its non-compliance with the Court’s orders by repeatedly submitting inaccurate descriptions of the alert list process to the FISC.” In addition, Judge Walton found that “thousands of violations [of FISC Orders had] resulted from the use of identifiers that had not been RAS-approved by analysts who were not even aware that they were accessing BR [“bulk records”] metadata.” The judge ruled that until the NSA took systemic measures “to restore the Court’s confidence that the government can and will comply with previously approved procedures for accessing such data,” the FISC would need to approve queries of metadata for foreign intelligence purposes on a case-by-case basis. In order to obtain approval, the government would need, at a minimum, to “specify the telephone number for which access is sought or was granted, provide the factual basis for the NSA’s determination that the reasonable articulable suspicion standard has been met with regard to that identifier, and, if the access has already taken place, a statement of the immediate threat [to human life] necessitating such access.”

Reported unauthorized sharing of query results

Also released by the DNI on March 28, 2014 was an updated version of a heavily redacted FISC order from 2009 that the DNI had originally released on September 10, 2013. Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], Docket Number: BR 09-06 (FISC June 22, 2009). In the Order, FISC Judge Reggie B. Walton responded to the government’s disclosures that the unminimized results of queries of metadata had been (i) shared with NSA analysts other than those authorized to access the data and (ii) uploaded by the NSA into a database to which other intelligence agencies had access, possibly resulting in the illegal dissemination of information about United States citizens or legal residents (“U.S. person information”). Judge Walton ordered the government to submit weekly reports to the FISC listing each instance in which the NSA had shared metadata with anyone outside the NSA, requiring that, for each instance in which U.S. person information had been shared, the Chief of Information Sharing of NSA’s Signals Intelligence Directorate certify that he or she had determined prior to dissemination that the information was “related to counterterrorism information and necessary to understand the counterterrorism information or to assess its importance.” In addition, the Judge ordered “a full explanation” from the government of why it had “permitted the dissemination outside NSA of U.S. person information without regard to whether such dissemination complied with the clear and acknowledged requirements for sharing U.S. person information derived from the metadata collected pursuant to the Court’s orders.”

Sharing with untrained analysts & querying with non-RAS approved numbers.

On September 10, 2013, the DNI,released an Opinion and Order that indicated that at a hearing on September 28, 2009, Judge Reggie B. Walton stated that the government had admitted that the results of a query of bulk telephony metadata had been sent to an email list of “189 NSA analysts who were working on the ‘[redacted]’ threat, only 53 of whom had received the required training and guidance” for access to results of queries. Supplemental Opinion and Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], Docket Number: BR 09-15 (FISC Nov.5, 2009). Judge Walton reiterated that, as required by previous FISC Orders, the dissemination of information of any kind about the results of queries of bulk telephony metadata must be limited to NSA analysts who had received “the necessary training and guidance,” and that only such analysts could be included on email distribution lists for such information.

Judge Walton also expressed concern about NSA queries of telephony metadata with telephone numbers for which reasonable articulable suspicion (“RAS”) no longer existed, but had existed in the past. “Given that telephone providers regularly re-assign telephone identifiers, and in light of the fact that the NSA acquires approximately [redacted] call detail records per day, the vast majority of which are irrelevant to the Federal Bureau of Investigation’s (‘FBI’) investigations and concern communications of United States persons in the United States, it would appear likely that such a query could produce results that include metadata from United States persons not under investigation by the FBI.” Citing the lack of detail in government reports, the judge required that future government applications for renewal of the authority to collect telephony metadata include (i) the total number of queries made with numbers for which RAS did not currently exist, and the percentage of such queries among the total queries made during the reporting period; (ii) the process used to limit queries with a particular telephone number to the time period for which RAS existed; (iii) the process used for adjusting the time frame if an analyst learned that RAS for a given phone number had terminated earlier than previously believed; and (iv) the process used for deleting or masking records of communications obtained through queries made with a telephone number after it had been re-assigned to a United States person not associated with a foreign power.

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