Constitutional Law

NSA may have gathered 'tens of thousands' of emails under discontinued program, court says

The National Security Agency may have unlawfully collected as many as tens of thousands of emails and other electronic communications between Americans under a now-discontinued surveillance program, according to a newly declassified secret court opinion.

The 2011 opinion, declassified by U.S. intelligence officials Wednesday, shows why the surveillance program was found to be unconstitutional, the Washington Post reports.

In the 86-page opinion, John D. Bates, chief judge of the Foreign Intelligence Surveillance Court, said the court had been advised by the government that the “volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe.”

A month after the FISA court learned of the program and found it to be unconstitutional, the NSA revised its collection procedures to filter out communications most likely to be between Americans, according to the Post. The agency later purged its files of the domestic communications it had already collected.

Intelligence officials said it was the NSA that brought the collection method to the FISA court’s attention as part of its regular reporting process.

“This was not in any respect an intentional or wholesale breach of privacy of American persons,” Robert S. Litt III, general counsel for the Office of the Director of National Intelligence, told the Post.

The Post, which last week reported that the FISA court had found the program unconstitutional, said the newly declassified opinion sheds new light on the volume of domestic communications that were collected by the NSA.

The opinion was released in response to a Freedom of Information Act lawsuit filed by the Electronic Frontier Foundation. U.S. intelligence officials also on Wednesday declassified a follow-up order about the NSA’s revised collection program.

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