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06/26/2019, 15:20:57

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NSA Improperly Collected U.S. Phone Records a Second Time

Dustin Volz
7-8 minutes

The National Security Agency collected records about U.S. calls and text messages that it wasn’t authorized to obtain last year, in a second such incident, renewing privacy concerns surrounding the agency’s maligned phone-surveillance program, according to government documents and people familiar with the matter.

The previously undisclosed error, which took place last October, occurred several months after the NSA said it had purged hundreds of millions of metadata records it had amassed since 2015 due to a separate overcollection episode. Metadata include the numbers and time stamps of a call or text message but not the contents of the conversation.

The American Civil Liberties Union obtained the documents, which were reviewed by The Wall Street Journal, as part of a Freedom of Information Act lawsuit involving the surveillance program. They are heavily redacted internal NSA memos that discuss oversight of intelligence-collection activities.

“These documents only confirm that this surveillance program is beyond redemption and should be shut down for good,” Patrick Toomey, an ACLU staff attorney, said in a statement. “The NSA’s collection of Americans’ call records is too sweeping, the compliance problems too many, and evidence of the program’s value all but nonexistent. There is no justification for leaving this surveillance power in the NSA’s hands.”

It wasn’t clear from the documents how many records the NSA improperly collected in October. The NSA’s media relations chief, Greg Julian, declined to comment specifically on the episode, but referred to the previously acknowledged incident of overcollection, disclosed last summer, in which telecommunications firms supplied information the NSA hadn’t been authorized to obtain.

“While NSA lawfully sought data pertaining to a foreign power engaged in international terrorism, the provider produced inaccurate data and data beyond which NSA sought,” Mr. Julian said.

The documents obtained by the ACLU suggest a similar situation, where a telecommunications firm, whose name is redacted, furnished call-data records the NSA hadn’t requested and weren’t approved by orders of the secretive U.S. Foreign Intelligence Surveillance Court. The company told the NSA it began delivering those records on Oct. 3, 2018, until that Oct. 12, when the agency asked it investigate the “anomaly.”

The ACLU said the documents also suggest an individual may have been targeted for surveillance as a result of the first overcollection episode, which led to the deletion of the program’s entire database in June 2018. The documents reveal that violation involved “targeting requests” that were approved by the surveillance court.

The revelation of another compliance issue is the latest hurdle for the once-secret surveillance program that began under the George W. Bush administration following the Sept. 11, 2001, attacks. As initially designed, the program sought to collect the metadata of all domestic calls in the U.S. to hunt for links among potential associates of terrorism suspects.

Edward Snowden, a former intelligence contractor, leaked the existence of the program—along with a trove of documents exposing other surveillance operations carried out by the NSA—to journalists six years ago. The disclosures ignited an international uproar over the scope of the U.S.’s electronic-spying capabilities.

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Disclosures in 2013 by Edward Snowden caused an international uproar over the scope of the U.S.’s electronic-surveillance capabilities. Photo: brendan mcdermid/Reuters

Following Mr. Snowden’s 2013 disclosures, Congress passed the USA Freedom Act in 2015, requiring the NSA to replace its bulk-metadata program with a pared-down system under which call records are retained by telephone companies. But that new system is now viewed by many within the intelligence community as more of a burden than a useful tool, in part due to the compliance issues. The Journal reported in April that the NSA has recommended shuttering the program due to logistical and legal burdens.

It wasn’t clear if the October episode is a factor in the NSA’s current thinking about the program’s fate. A national-security adviser for the Republican congressional leadership said in a March podcast interview that the NSA hadn’t used the program in the preceding six months, which would roughly align with the reported October collection violation.

Any final decision on whether to push for legislation to renew the surveillance tool would be made by the White House, which hasn’t yet reached a policy decision. “This is an interagency deliberative process that will be decided by the Administration,” said Mr. Julian, the NSA spokesman.

The NSA report said the impact on civil liberties or privacy of the October overcollection incident was limited due to quick identification of the issue and “purge processes,” but it said a further review would be provided once the investigation was completed. The file, from February, listed the investigation into the matter as still active.

The documents are surfacing publicly as Congress is moving closer to debating portions of the Patriot Act that will lapse in December if lawmakers don’t pass renewal legislation before then. Congressional committees with oversight of the NSA’s surveillance operations were briefed on the October overcollection episode, according to people familiar with the matter.

Late Tuesday, the ACLU sent a letter to Reps. Jerrold Nadler of New York and Doug Collins of Georgia, the top Democrat and Republican lawmakers on the House Judiciary Committee, saying the documents showed the surveillance program wasn’t operating within the law and should be terminated.

The Judiciary Committee has begun considering legislation to deal with the expiring Patriot Act provisions, and it likely won’t include a renewal of the phone-surveillance program, a committee aide said.

Congressional support for the program has been waning in both parties.

“Every new incident like this that becomes public is another reason this massive surveillance program needs to be permanently scrapped,” Sen. Ron Wyden (D., Ore.), a longtime critic of the program, said. “But it is unacceptable that basic information about the program is still being withheld from the public.”

Write to Dustin Volz at dustin.volz@wsj.com" target="_blank" style="color: rgb(0, 149, 221); text-decoration-line: none;">dustin.volz@wsj.com





LIBERTY HAS NO EXPIRATION DATE

Democrats wouldn't buy a clue if it was government subsidized.





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