WASHINGTON — The National Security Agency for about three years violated restrictions on checking U.S. telephone records for surveillance and misled judges on how the data was used, intelligence officials said.
The agency on a daily basis improperly checked a select list of phone numbers against databases containing millions of call records, without meeting the necessary standard, according to documents released by the Office of the Director of National Intelligence to privacy groups Tuesday in response to lawsuits.
The violations occurred between May 2006 and January 2009 and involved checks on as many as 16,000 phone numbers, including some based in the United States, said two senior intelligence officials with direct knowledge of how the program operated. They asked not to be identified in order to speak about sensitive matters.
The new disclosures add to evidence that U.S. intelligence agencies have violated legal and administrative restrictions on domestic spying. Lawmakers are considering new restraints on intelligence gathering programs.
"I think it's pretty damning," said Trevor Timm, a digital rights analyst with the San Francisco-based Electronic Frontier Foundation, one of the groups that sued the NSA. "This shows a larger pattern that a lot of times the NSA doesn't alert the court to serious privacy violations, whether they are intentional or unintentional, for years down the road."
The NSA collects bulk phone records, such as numbers and call durations, under Section 215 of the USA Patriot Act, which allows the government to compel U.S. companies to turn over "any tangible thing" that is relevant to a terrorism investigation.
Under rules imposed by the Foreign Intelligence Surveillance Court, the agency must have "reasonable, articulable suspicion" that a phone number is believed to be connected to a terrorist plot in order to query it against the larger database of records.
Between May 2006 and January 2009, NSA analysts would query the database with thousands of numbers on an "alert list," the intelligence officials said. Those numbers didn't meet the necessary legal standard, the officials said.
The alert list grew from 3,980 in 2006 to 17,835 in 2009, one of the officials said. About 2,000 numbers on the list in 2009 met the necessary legal standard, the official said, meaning almost 16,000 didn't.
Furthermore, the NSA misled the court during those years by certifying that the necessary legal standard was being met for all numbers queried, the official said. Lawyers interacting with the court didn't understand what was being done under the program, the official said.
The NSA notified the court in January 2009 of the violations, the official said. Between March 2009 and September 2009 the court required the NSA to get approval for each number it wanted to query. In September of that year the court approved revised procedures that allowed the program to continue, the official said.
It wasn't the first time the NSA has acknowledged violations or that it misled the court.
The NSA said last month that some analysts deliberately ignored restrictions on their authority to spy on Americans multiple times in the past decade. Legal opinions declassified Aug. 21 revealed that the NSA intercepted as many as 56,000 electronic communications a year of Americans who weren't suspected of having links to terrorism, before the secret court that oversees surveillance found the operation unconstitutional in 2011.
In a declassified legal opinion from October 2011, the court said the agency misrepresented the scope of surveillance operations three times in less than three years.
A May 2012 internal government audit found more than 2,700 violations involving NSA surveillance of Americans and foreigners over a one-year period. The audit was reported Aug. 16 by the Washington Post, citing documents provided by former NSA contractor Edward Snowden.
The extent of the phone metadata program was exposed in June by Snowden, now in Russia under temporary asylum. He revealed a classified legal order compelling Verizon Communications Inc. to turn over the phone records of millions of customers to the NSA.
The administration acknowledged the phone metadata program involves multiple telecommunications companies in an Aug. 9 description of how the program works, without naming any other participating companies.
Today's disclosures were made in response to a judge's order in a freedom of information lawsuit brought by San Francisco-based Electronic Frontier Foundation, a civil liberties group that sued the Justice Department in 2011 for records about what private information the government is collecting under the USA Patriot Act.
The group filed the lawsuit after the government didn't respond to its requests to turn over documents describing its collection and surveillance efforts. In November the government asked U.S. District Judge Yvonne Gonzalez Rogers in Oakland, Calif.,. to toss the case, saying the EFF sought documents that were exempt from disclosure to protect national security.
The Justice Department said in a Sept. 5 court filing that it would release hundreds of pages to EFF, including orders and opinions of the surveillance court from January 2004 to June 2011 and other documents about the court's work. Gonzalez gave the government until Tuesday to turn the information over.
The government has collected "the details of every call made by every American" in violation of the Patriot Act, said Rep. Jim Sensenbrenner, R-Wis., who helped write the 2001 law.
"The implications of this flawed interpretation are staggering," Sensenbrenner wrote in a Sept. 6 letter to Attorney General Eric Holder. "The logic the administration uses for bulk collection would seem to support bulk collection of other personal data."
Sensenbrenner also filed a legal brief Sept. 4 supporting a lawsuit by the American Civil Liberties Union against the bulk collection program. He questioned whether the program could be used to build a national database of gun owners and violate the constitutional rights of Americans to keep arms.
The National Rifle Association, the largest U.S. gun-rights lobbying group, also filed a legal brief supporting the ACLU's motion for a preliminary injunction, which would halt the program until the case is decided.
—With assistance from Karen Gullo in San Francisco.