In a just-released court opinion, a federal court judge overseeing government surveillance programs said he was “extremely concerned” about a series of incidents in which the Federal Bureau of Investigation and National Security Agency deviated from court-approved limits on their snooping activities.
Foreign Intelligence Surveillance Court Judge Thomas Hogan sharply criticized the two agencies over the episodes, referred to by intelligence gatherers as “compliance incidents.” He also raised concerns that the government had taken years to bring the NSA-related issues to the court’s attention and he said that delay might have run afoul of the government’s duty of candor to the court.
“The court was extremely concerned about NSA’s failure to comply with its minimization procedures—and potentially” a provision in federal law, Hogan wrote. The NSA violations appeared to involve preserving surveillance data in its systems beyond the two or five years after which it was supposed to be deleted.
“Perhaps more disappointing than the NSA’s failure to purge this information for more than four years, was the Government’s failure to convey to the Court explicitly during that time that the NSA was continuing to retain this information,” the judge wrote in the Nov. 6, 2015, opinion made public Tuesday.
In a statement, the Office of Director of National Intelligence said officials did not mean to be misleading. “The Government has informed the Court that there was no intent to leave the FISC with a misimpression or misunderstanding, and it has acknowledged that its prior representations could have been clearer,” the statement posted on ODNI’s Tumblr site said.
The NSA said in some cases it needed the data to prevent future incidents where data was accidentally collected without legal authority, like when a surveillance target enters the U.S. (At that point, officials are supposed to seek a more specific court order to continue the surveillance.) However, that wasn’t the case with all of the old data NSA was hanging onto.
The FBI’s troubles involved failing to use the required procedures when conducting surveillance of suspects overseas who are facing criminal charges in U.S. courts. In order to preserve attorney-client privilege, the FBI is supposed to have such surveillance reviewed by a “taint team” that can excise any legal communications, but that was not happening in all cases, the FBI reported.
Hogan said the FBI revealed some such incidents in 2014, but the number was redacted from the opinion made public Tuesday. “The government generally attributed those instances to individual failures or confusion, rather than a ‘systematic issue,’ ” Hogan wrote. However, more incidents occurred from mid-2014 and through 2015, although again the precise number was not released. In some instances, FBI agents believed, incorrectly, that they didn’t need to set up a review team if the indictment was under seal or outside the U.S.
“The Court was extremely concerned about these additional incidents of non-compliance,” wrote Hogan, who also serves as a federal district court judge in Washington. He was appointed by President Ronald Reagan.
At a closed hearing last October, the FBI detailed some procedures set up to remedy the problem, including additional training and a system to remind agents when such reviews are needed. Hogan said he was “satisfied” that the FBI was “taking appropriate measures” to address the issue. However, he said he “strongly encourages” the government to find any other such mistakes and he said he wanted a briefing on those efforts earlier this year.
The FBI declined to comment, and spokespeople for the NSA did not immediately respond to a request for comment on the court ruling.