The NSA collected emails between United States citizens for three years until the Foreign Intelligence Surveillance Court ruled that the program was unconstitutional.
The U.S. government declassified the court opinion written by Judge John D. Bates in October 2011 as part of a Freedom of Information Act lawsuit filed by the Electronic Frontier Foundation published by the Washington Post. Bates ruled that specifically the “‘upstream collection’ of Internet transactions containing multiple communications is, in some respects, deficient on statutory and constitutional grounds.”
At the time, the NSA was trying to get approval for the program under Section 702 of FISA, the Foreign Intelligence Surveillance Act.
The upstream collection references an NSA program where data was collected through tapping fiber-optic cables. Those performing the collection originally said they were able to filter out the communications of those beginning and terminating between two U.S. citizens, but it seems it was not truly able to do this.
The court opinion explains that the upstream collection included “the acquisition of entire transactions,” though it promised to minimize, or get rid of any data it did not need.
“The letter noted that the NSA uses [redacted] to ensure that ‘the person from whom it seeks to obtain foreign intelligence information is located overseas,’ but suggested that the government might lack confidence in the effectiveness of such measures as applied to Internet transactions,” Bates wrote in the opinion.
Following this ruling, the NSA deleted its store of this data, which numbered up to 56,000 communications collected each year, and changed its collection processes to filter out U.S. to U.S. communications. The declassified document shows that the FISA court does have and uses its oversight in regards to the NSA, but it further highlights how far the NSA can go before it is checked.