Judge Concerned FBI and NSA Overstepped Surveillance Limits

Posted by Yancey Ellis | May 23, 2016 | 0 Comments

Years after Edward Snowden released information about the government's massive information gathering program, we still know very little about the extent of the government's surveillance. A secret court decision has recently been released, where the judge was disturbed by the government's overreach in gathering and retaining individuals' personal information.

The most secretive court in the country, the Foreign Intelligence Surveillance Court (FISC) released three decisions last month addressing how the National Security Agency and FBI gathered surveillance information. Judge Thomas Hogan's November 2015 decision listed several specific violations of internal NSA policies. In particular, the NSA failed to destroy personal information after it became clear that the information was not related to criminal investigations.

Data gathered through online data mining is supposed to be deleted within 2 to 5 years, unless is is part of a criminal investigation. Judge Hogan wrote that the NSA is supposed to be minimizing surveillance, but there is no clear plan for how the NSA will comply with these constitutional requirements. “The government shall promptly submit in writing a report describing each instance in which the NSA or CIA invokes the provision of its minimization procedures."

Much of the decision was heavily redacted, including redaction of the listed specific violations. In addition to criticizing the NSA's actions, Judge Hogan criticized the government's lack of candor to the court. The government was aware of the compliance incidents for years, but failed to bring them to the court's attention.

“Perhaps more disturbing and disappointing than the NSA's failure to purge this information for more than four years,” wrote Judge Hogan, “was the government's failure to convey to the court explicitly during that time that the NSA was continuing to retain this information."

The NSA was not the only federal agency that Judge Hogan voiced concern about. When the FBI is conducting surveillance overseas of individuals facing U.S. criminal charges, they are supposed to have the surveillance reviewed by a team to redact possible legal communications in order to preserve attorney-client privileges. However, the FBI often failed to have the surveillance properly reviewed according to required procedures.

Another of the recently released ruling by Judge Hogan was more specific in the recommendations to the NSA. If call detail records are not related to foreign intelligence information, the government is to retain that information “for a reasonable period not to exceed six months unless extended in writing by the Attorney General.”

These rulings have been released as part of a number of lawsuits seeking more information about government surveillance activity. The Electronic Frontier Foundation (EFF) has filed several lawsuits against the federal government demanding more transparency about what the government is gathering, and what they are doing with that information.

“The court is deciding important questions in secret and the public have a right to know,” said Aaron Mackey, an attorney with EFF. “Initially, this court was designed as a warrant court, to allow the government to perform surveillance on targets in foreign countries. Now it decides whether broad surveillance programs enacted by the government are constitutional."

About the Author

Yancey Ellis

Yancey is the managing partner at Carmichael Ellis & Brock, PLLC. He is critical to our firm-wide mission of service to the indigent, upholding the Constitution, and guiding our clients through the criminal justice system. As a Marine Corps JAG reservist, Yancey also assists military service members and veterans with their special legal needs.           


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