As the result of a lawsuit by the Electronic Frontier Foundation, the Office of the Director of National Intelligence declassified a new cache of documents today, revealing more than a dozen FISA court rulings and internal documents. Among the documents are details of a so-called "compliance breach" in 2009 that saw the NSA improperly track more than 15,000 suspects in violation of FISA court rulings, and resulted in only minimal repercussions for the agency.
Out of 17,835 suspects, fewer than 2,000 cleared the FISA court's standard
The dispute centered around the legal idea of "reasonable, articulable suspicion," the bar a law enforcement agency must clear before they can stop to search a suspect. In the NSA's case, this took the form of a list of suspects that FISA courts had determined cleared the bar for reasonable suspicion and could be placed on the NSA alerts list, which would flag their phone records as they entered the system.
But the NSA's software, whether through bad code or legal ignorance, seems to have ignored reasonable suspicion entirely. A software audit on January 15th, 2009 revealed that, out of the 17,835 phone numbers on the NSA's alert list (referred to as "identifiers"), fewer than 2,000 had cleared the FISA court's standard of reasonable suspicion. Making matters worse was that much of the NSA didn't seem to think there was a problem. As one document puts it, even the NSA's in-house lawyers "appear to have viewed the alert process as merely a means of identifying a particular identifier on the alert list that might warrant further scrutiny."
From there, the documents chart months of back-and-forth between the FISA courts and the government arguing over the severity of the breach and the possible causes. At one point, the government claimed that, "there was no single person who had a complete technical understanding of the BR FISA architecture," which contributed to the agency's misrepresentations. In March of 2009, the FISA court revoked the NSA's authority to perform any bulk queries "until such time as the Government is able to restore the Court’s confidence," but in September, after an FBI request an a promise to improve record-keeping, the court restored the authority and bulk metadata queries began again.
Update: The documents posted by the government don't have keyword search enabled, but the Electronic Frontier Foundation has posted additional PDF copies that do have optical character recognition (OCR) capability, allowing for keyword searches.
Adi Robertson also contributed reporting.