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Secret U.S. court approved wider NSA spying even after finding excesses

Antennas of the former National Security Agency (NSA) listening station are seen at the Teufelsberg hill, or Devil's Mountain in Berlin, Nov
Antennas of the former National Security Agency (NSA) listening station are seen at the Teufelsberg hill, or Devil's Mountain in Berlin, Nov

By Joseph Menn

SAN FRANCISCO (Reuters) - A secret U.S. intelligence court let the National Security Agency collect an expanded amount of data about Americans' email even after finding that the agency systematically exceeded the limits of a smaller program, newly released documents show.

The judge on the Foreign Intelligence Surveillance Court recounted a litany of problems with the first, smaller program, including the NSA collecting more categories of information than had been approved by the court and sharing data more widely within the electronic eavesdropping agency than had been authorized.

At issue are emails among U.S. citizens that the NSA scooped up in its pursuit of foreign intelligence. Though historically focused overseas, the agency intensified its domestic operations after the September 11, 2001, attacks in hopes of finding people in the country working with terrorists or spies.

The programs let the NSA search for Americans who had electronic contact with people who were in turn linked to people hostile to the United States. At times, however, analysts queried the database with names that had not been found to be terrorists or foreign agents, the judge found.

The NSA was allowed to share criminal evidence with law enforcement agencies, but in other cases it was supposed to obscure email addresses to protect the identities of U.S. citizens because of the Fourth Amendment's protections against unreasonable searches.

Instead, Judge John Bates wrote about the first bulk collection program, "NSA analysts made it a general practice to disseminate to other agencies intelligence reports containing U.S. person information," such as their email addresses.

Bates' 117-page opinion was among nearly three dozen documents declassified and released on Monday by the Office of the Director of National Intelligence in the wake of suits filed by the American Civil Liberties Union and the Electronic Frontier Foundation.

SERIOUS NON-COMPLIANCE

The order is heavily redacted, with entire pages and even the date of the ruling censored. Still, the remaining harsh criticism echoes that of a previously disclosed opinion faulting the NSA's conduct in scooping up email addresses and routing information.

"We've now seen multiple FISA Court opinions documenting a pattern of serious non-compliance and misrepresentation on the part of the NSA," said Elizabeth Goitein of the Brennan Center for Justice at New York University.

"These opinions highlight the dangers of a surveillance system that relies so heavily on self-policing by the agencies that are collecting Americans' data. The new releases also confirm that the FISA court lacks the will to rein in the NSA," she said.

In a statement accompanying Monday's release, the Office of the Director of National Intelligence wrote that the second program had been discontinued in 2011 after an "examination revealed that the program was no longer meeting the operational expectations that NSA had for it."

The intelligence officials wrote in Monday's statement that the first program was abandoned after it brought problems to the attention of the court.

Other mass collection programs continue, documents leaked by former NSA contractor Edward Snowden show, and it is possible that the second program likewise was dropped under pressure from the court.

The newly disclosed order also shows that the NSA tried to prolong its access to the fruits of the dropped program and was partially successful. Judge Bates agreed to let analysts search data that had been collected properly but not the extra material it shouldn't have collected in the first place.

The judge said legislation "makes it a crime for any person, acting under color of law, intentionally to use or disclose information with knowledge or reason to know that the information was obtained through unauthorized electronic surveillance."

Compared to the initial program, Bates said the second "encompasses a much larger volume of communications, without limiting the requested authorization to streams of data with a relatively big concentration of foreign power communications."

But after accepting procedures to limit the spread of identifying information on Americans, he approved it anyway.

(Reporting by Joseph Menn, editing by Peter Henderson and Philip Barbara)

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