Newly released documents relating to the massive collection of the email data and metadata of regular non- “person of interest” citizens by the NSA, following Freedom of Information Act (FOIA) requests by the ACLU and the Electronic Frontier Foundation (EFF) have revealed, among other things, that the NSA was collecting (overcollecting, say some) the cc: and bcc: information (metadata) in emails being sent by millions of U.S. citizens.
Moreover, they reveal that the Foreign Intelligence Surveillance Court (also known as the FISA court, for the Foreign Intelligence Surveillance Act) had specifically ruled that U.S. citizens were not entitled to an expecation of privacy, as guaranteed in the 4th Amendment, of their meta data (i.e. the information in email headers such as that following “to”, “from”, “subject”, “date”, “cc” and even “bcc”).
Then FISA Court chief justice Colleen Kollar-Kotelly relied in that ruling on a 1979 Supreme Court case relating to older surveillance methods such as pen registers and so-called “trap and trace” devices, which collect the routing information of communications such as telephone calls. Kollar-Kotelly, somewhat uneasily it should be noted, ruled from the FISA bench that collecting email metadata was not inconsistent with the legality of these other methods of collecting routing information.
In that opinion, she wrote that “The court recognizes that, by concluding that these definitions do not restrict the use of pen registers or trap-and-trace devices to communication facilities associated with individual users, it is finding that these definitions encompass an exceptionally broad form of collection.”
The NSA collected the metadata of emails, including the senders, recipients, and dates of the emails, up through 2011, at which time the Obama administration shut down that part of the program, citing resource and operational concerns.
A statement yesterday, attributed to director of national intelligences James Clapper, said that the overcollection issue was due to “longstanding compliance issues associated with N.S.A.’s electronic communications and telephony bulk metadata collection programs,” adding that the NSA “recognized that its compliance and oversight structure had not kept pace with its operational momentum.”
“Release of these documents reflects the executive branch’s continued commitment to making information about this intelligence collection program publicly available when appropriate and consistent with the national security of the United States,” Clapper added.
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