NSA Destroyed Its Illegal Content-as-Metadata Data in 2011

The government released a bunch more documents in its several legal battles with EFF today. One of those is the newly-declassified declaration SID Director Theresa Shea submitted back in March about how difficult it would be to retain the phone dragnet data relevant in EFF’s phone dragnet suit, First Unitarian.

There are a number of interesting things in the declaration (including probably outdated claims about NSA’s efforts to roll out a new architecture integrating Section 215 data in with the rest of the dragnets). But I find this revelation quite interesting.

The NSA’s collection of bulk Internet metadata transitioned to FISC authority under section 402 of FISA in July 2004. Until December 2009, these data were subject to the FISC’s orders to a 4.5-year retention limit, after which, pursuant to  a change in the FISC orders, these data could be retained for up to five years. In December 2011, the Government decided not to seek FISC reauthorization of the NSA’s bulk collection of Internet metadata because the program had not met operational expectations. Because the NSA did not intend thereafter to use the Internet metadata it had retained for purposes of producing or disseminating foreign intelligence information, in keeping with the principle underlying the destruction requirements by the FISC, the NSA destroyed the remaining bulk Internet metadata in December 2011.

Poof! Proof of at least 2.5 years (figuring 2007 to October 2009; there should be a gap after that, followed by what I assume is a period of legal but not very useful data) of illegal collection of US person content in the US, gone!

Mind you, I’m glad they’re not sitting on all our Internet content-as-metadata anymore, but I do find it interesting they’ve destroyed the evidence of their crime.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

10 replies
  1. bloopie2 says:

    It IS curious. They don’t seem to have a history of thinking far in advance to thwart their opponents. Why then in this case?

  2. Snoopdido says:

    The 10 new documents in today’s dump are up at I Con The Record: http://icontherecord.tumblr.com/post/84948492788/dni-announces-the-release-of-additional-documents
    .
    And include the following:
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    ●DNI Negroponte 2006 Hepting State Secrets Declaration
    ●DNI Negroponte 2006 Hepting Supplemental State Secrets Declaration
    ●DNI McConnell 2007 MCI & Hepting State Secrets Declaration
    ●DNI Clapper 2013 Jewel/Shubert State Secrets Declaration
    ●NSA Alexander 2006 Hepting Declaration
    ●NSA Black 2006 Hepting Declaration
    ●NSA Alexander 2007 MCI & Verizon Declaration
    ●NSA Fleisch 2013 Jewel/Shubert Declaration
    ●NSA Shea 2014 Jewel/First Unitarian Declaration
    ●AG Mukasey 2008 Declaration

    • Snoopdido says:

      I’ve been reading through the NSA Alexander 2006 Hepting Declaration (http://www.dni.gov/files/documents/0505/NSA%20Alexander%202006%20Declassified%20Hepting%20Declaration.pdf).
      .
      Aside from the typical exaggeration and hyperbole that Alexander is known for (As but one example: “On September 14, 2001, the President declared a national emergency…The United States also launched a massive military response, both at home and abroad.”) , Alexander’s 2006 Hepting Declaration on page 19 lists the following “NSA Sources and Methods at Issue” in his effort to assert the state secrets privilege:
      .
      “(1) Redacted sentence.
      (2) Redacted sentence.
      (3) Meta Data Collection and Analysis
      (4) The Terrorist Surveillance Program”
      .
      In reading the earlier portions of the Alexander declaration, he clearly states that the NSA was in fact collecting the “content” of both telephone and Internet communications.
      .
      Which brings me to my question regarding the above listed “NSA Sources and Methods at Issue”:
      .
      Since the 2 redacted initial sentences likely refer to content collection which is described at a high level in previous pages of Alexander’s declaration, why bother to redact their short descriptions on page 19?
      .
      Is this because even with all the existing Snowden-provided documents on metadata collection of both telephone and Internet communications, we’ve yet to really get to the stuff that the NSA was and is doing with “content” collection?

  3. earlofhuntingdon says:

    I do like this coming from an expert on Lewis Libby and federal obstruction of justice crimes.

  4. chronicle says:

    Poof! Proof of at least 2.5 years (figuring 2007 to October 2009; there should be a gap after that, followed by what I assume is a period of legal but not very useful data) of illegal collection of US person content in the US, gone!

    Mind you, I’m glad their not sitting on all our Internet content-as-metadata anymore, but I do find it interesting they’ve destroyed the evidence of their crime.

    • chronicle says:

      Let me get this straight Marci. You are claiming…quote” they’ve destroyed the evidence of their crime” unquote.

      Someone…anyone …PLEASE…tell me where, how, WE, can CONVICT these CRIMINALS…once and for all…. otherwise… your analysis is total BULLSHIT…..

  5. chronicle says:

    Please… let’s get REAL here. I mean..REALLY REALLY REAL. I’m getting really tired of analysis that does FUCKING NOTHING. ZERO. ZILCH. I’ve already addressed the why emptywheels analysis is not being picked up by any attorney, the ACLU, the Intercept crew.. or for that matter..the USG. WHY? IF…given…Marci’s analysis is TRUE… it would stand to reason that SOMEONE, in the WHOLE FUCKING WORLD…isn’t taking this information into a court. WHY??????????????????????????????????????????????????????????????????????/

  6. Snoopdido says:

    As I’m reading through the NSA Fleisch 2013 Jewel/Shubert Declaration (http://www.dni.gov/files/documents/0505/NSA%20Fleisch%202013%20Declassified%20Jewel,%20Shubert%20Declaration.pdf), on page 25 is this formal NSA acknowledgement about their Section 702 Hoovering in the US confirming what former AT&T employee Klein described happening in San Francisco as well as other US locations:
    .
    “Second, in addition to collection directly from providers, the NSA collects electronic communications with the compelled assistance of electronic communication service providers as they transit Internet “backbone” facilities within the United States.”

    • Snoopdido says:

      From page 49 of that same 2013 Fleisch declaration:
      .
      “72. (TS/SI/NF) In addition, still-classified details of the NSA’s process for querying the telephony metadata, [redacted some 20 words or so] must not be disclosed to prevent risking exceptionally grave damage to national security.”
      .
      Any guesses as to what those still-classified details are? That automated querying process that never seemed to work right, but still being used?

      • Snoopdido says:

        Again from the 2013 Fleisch declaration on page 51 where it seems to confirm that those still-classified querying details are indeed related to automated querying functions:
        .
        “73. (TS//SI//NF) Additionally, while the NSA has publicly disclosed that it is authorized to query the telephony metadata collected under FISC orders either by manual analyst queries or through an automated query process, other specific details concerning how the NSA’s automated query process works remain currently and properly classified.”

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