NSA Mistakenly Grabbed Thousands of Messages

Oxford/Getty Images(MCLEAN, Va.) — President Obama’s intelligence advisers mounted a new public relations blitz on Wednesday aimed at pushing back at the perception that the National Security Agency has sucked up Americans’ private emails unrelated to terrorism.

The moves came as Congress and the White House are each considering ways to ensure electronic intelligence collection doesn’t overreach in the wake of leaks about the NSA’s not-so-secret spying by ex-employee Edward Snowden, who remains on the lam in Russia.

The Office of the Director of National Intelligence, which oversees all 16 U.S. intelligence agencies, declassified three Top Secret opinions by the Foreign Intelligence Surveillance Court that reveal NSA errors resulting in tens of thousands of emails both from and to Americans with no ties to terrorism being collected and archived for years.

“This was not intentional or a wholesale breach of the privacy of Americans,” Robert Litt, general counsel for the DNI, insisted in a meeting with a small group of reporters.

After some media reports suggested otherwise, it had been decided that “disclosure is in the public interest, outweighing the harm to national security,” Litt added.

There is a system in place at NSA “to rat on ourselves when we don’t get it right and to fix it when we don’t get it right,” a senior intelligence official told reporters.

At issue are the 9 percent of “upstream” Internet communications — meaning the portion transiting the U.S. from overseas over Internet backbones and not directly collected by NSA from a cooperating U.S. service provider — out of 250 million total Internet communications NSA collects each year, according to the newly declassified documents.

Some targeted foreign terrorists’ emails have gotten mixed up in batches of emails — called “transactions” — collected by the spy agency, and some transactions may have contained no targeted terrorists’ email addresses, senior intelligence officials explained.

The three opinions issued between late 2011 and mid-2012 by the super secret Foreign Intelligence Surveillance Court showed that although what officials characterized as “technological problems” had resulted in some “wholly domestic” Internet communications being collected — those protected by the Fourth Amendment of the Constitution — the problem was corrected by the NSA and approved by the court.

“The documents that are released today, I think, will provide a strong indication to back up the statements we’ve been making from the beginning about the strong nature of the oversight of this program,” said one of the senior intelligence officials, who refused to allow himself to be identified.

But Judge John Bates was not always so convinced.

“The Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” Bates wrote.

Besides improving its collection capability to avoid future mistakes, the NSA also shortened its retention time of all the communications collected from five to two years and purged everything it collected between 2008 and 2011, officials said.

“This was a problem the government discovered and brought to the attention of the FISA court promptly,” an official said.

However, the officials did not offer any estimate as to the number of Americans who had their communications intercepted as a result of the flaw. Nor did they answer any questions about Wednesday’s Wall Street Journal story that the government has the capability to collect roughly 75 percent of all U.S. Internet traffic. But the same officials said the document release would show Americans the “really effective self-policing that goes on at NSA.”

The DNI also published a new website to tout newly declassified documents and explain intelligence collection aimed at discovering terror plots and espionage activities — but the newly declassified files on Wednesday were not immediately posted online.

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