NSA gathered thousands of Americans’ e-mails before court struck down program

The National Security Agency unlawfully gathered as many as tens of thousands of e-mails and other electronic communications between Americans as part of a now-discontinued collection program, according to a 2011 secret court opinion. The 86-page opinion, which was declassified by U.S. intelligence officials, explains why the chief judge of the Foreign Intelligence Surveillance Court ruled the collection method unconstitutional.

“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” Judge John D. Bates, then the surveillance court’s chief judge, wrote in his Oct. 3, 2011 opinion. In the opinion, Bates also expressed deep frustration with the government, saying that it had “disclosed a substantial misrepresentation regarding the scope of a major collection program” three times in less than three years. Under the program, the NSA for three years diverted large volumes of international data passing through fiber-optic cables in the United States into a repository where the material could be stored temporarily for processing and for the selection of foreign communications, rather than domestic ones. But in practice, the NSA was unable to filter out the communications between Americans. According to NSA estimates, the agency may have been collecting as many as 56,000 “wholly domestic” communications each year.