Less than a year after the Sept. 11 attacks, the nation’s surveillance court delivered a ruling that intelligence officials consider a milestone in the history of American spying and privacy law. Called the “Raw Take” order, it weakened restrictions on sharing private information about Americans.
The administration of President George W. Bush, intent on not overlooking clues about Al Qaeda, had sought the July 22, 2002, order. It is one of several still-classified rulings by the Foreign Intelligence Surveillance Court described in documents provided by Edward J. Snowden, the former National Security Agency contractor.
Previously, with narrow exceptions, an intelligence agency was permitted to disseminate information gathered from court-approved wiretaps only after deleting irrelevant private details and masking the names of innocent Americans who came into contact with a terrorism suspect.
The leaked documents that refer to the rulings add new details to the emerging public understanding of a secret body of law that the court has developed since 2001. The files help explain how the court evolved from its original task — approving wiretap requests — to engaging in complex analysis of the law to justify activities like the bulk collection of data about Americans’ emails and phone calls.
“These latest disclosures are important,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. “They indicate how the contours of the law secretly changed, and they represent the transformation of the Foreign Intelligence Surveillance Court into an interpreter of law and not simply an adjudicator of surveillance applications.”
Marc Rotenberg, the executive director of the Electronic Privacy Information Center, argued that the easing of privacy protections mandated by the Foreign Intelligence Surveillance Act of 1978 increased the risk of abuse and should not be a secret.
The number of Americans whose unfiltered personal information has been shared among agencies is not clear. Since the Sept. 11 attacks, the court has approved about 1,800 FISA orders each year authorizing wiretaps or physical searches — which can involve planting bugs in homes or offices, or copying hard drives — inside the United States. But the government does not disclose how many people had their private conversations monitored as a result.
Other Americans whose international phone calls and emails were swept up in the N.S.A.’s warrantless wiretapping program after it was legalized in 2007 have increased those numbers. The new disclosures come amid a debate over whether the surveillance court, which hears arguments only from the Justice Department, should be restructured for its evolving role.
Proposals include overhauling how judges are selected to serve on it and creating a public advocate to provide adversarial arguments when the government offers complex legal analysis for expanding its powers.
Congress had enacted FISA after revelations about decades of abuses of surveillance undertaken in the name of national security — like the F.B.I.’s taping of the Rev. Dr. Martin Luther King Jr.’s extramarital affairs and its sharing of the information with the Kennedy White House. The law required agencies to “minimize” private information about Americans — deleting data that is irrelevant for intelligence purposes before providing it to others.
Exceptions had been narrow, like when an agency needed decoding or translating help from a counterpart.
One ongoing example is that when information has not yet been examined and another agency is going to perform that task, minimization requirements are not yet in effect. Another explains that lawmakers intended that “a significant degree of latitude be given in counterintelligence and counterterrorism cases” regarding the retention or sharing of information “between and among counterintelligence components of the government.”
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