The National Security Agency (NSA) may have unintentionally collected as many as 56,000 e-mails of Americans per year between 2008 and 2011 in a program that a secret US court subsequently said may have violated US law and the Constitution, according to documents released on Wednesday.
The once-classified documents were released by US intelligence agencies as part of an unprecedented White House effort to smooth the uproar following revelations by former NSA contractor Edward Snowden about the extent of secret government surveillance programs.
US officials say the documents show that intelligence collection programs that inadvertently intrude on Americans’ privacy are found and fixed.
However, they also appear to raise new questions about operations by the eavesdropping agency and its oversight by the secret US Foreign Intelligence Surveillance Court (FISC).
“The court is troubled that the government’s revelations regarding the NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” Judge John Bates of the surveillance court wrote in one of the declassified documents.
More specifically, Bates said in an October 2011 ruling that the court had concluded that the process that resulted in improper collections of the tens of thousands of e-mails was “in some respects, deficient on statutory and constitutional grounds.”
The e-mails in question represent only a small slice of the electronic communications scooped up around the world by the NSA. It targets about 250 million e-mail communications for collection each year and, under a separate program, has captured and kept records of millions of telephone calls by Americans.
According to the documents, only about 9 percent of the e-mails — or less than 25 million — are collected from “upstream” sources, which officials familiar with intelligence operations said are cable links belonging to telecommunications companies.
The rest are acquired by the NSA from Internet service providers at the point where they are sent or received. The roughly 56,000 annual e-mails in question were from “upstream” sources.
Intelligence officials, speaking on condition of anonymity, defended their practices.
“This is not an egregious overreaching by a greedy agency seeking to spy on Americans. This is a technological problem that resulted in an inadvertent collection of a relatively small number of US person communications,” a senior intelligence official told reporters.
In the newly declassified ruling of the FISA Court, the court in a footnote estimates that, based on data supplied by the NSA, between 2008 and 2011, the agency might have unintentionally collected as many as 56,000 e-mailed communications of Americans annually.
US intelligence officials told reporters that the domestic e-mails were collected under a program designed to target the e-mails of foreign terrorism suspects.
The program does not collect e-mails because of flagged words such as “bomb.” Instead it takes in those mentioning specific addresses, or going to or from particular addresses, one official said.
One way that e-mails of US citizens can get caught in the net is because the program captures the screenshot of the person’s Webmail account that shows a page of e-mails received or sent, rather than just the one targeted e-mail, he said.
“For technological reasons NSA was not capable ... and still is not capable of breaking those down into their individual components,” the official said.
According to the officials and a court document which the administration released, the NSA decided to “purge” the material after discovering it was inadvertently collected.
The historically ultra-secretive NSA has recently taken rare steps to openly discuss classified surveillance programs after the Snowden disclosures put the administration of US President Barack Obama on the spot to try and explain that US intelligence agencies were not deliberately spying on Americans and foreign allies.