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This is a list of NSA controversies. During it's history the National Security Agency has been involved in a number of controversies.

Controversy and litigation

In the United States, at least since 2001, there has been legal controversy over what signal intelligence can be used for and how much freedom the National Security Agency has to use signal intelligence. In 2015, the government made slight changes in how it uses and collects certain types of data, specifically phone records. The government was not analyzing the phone records as of early 2019. The surveillance programs were deemed unlawful in September 2020 in a court of appeals case.

Warrantless wiretaps

On December 16, 2005, The New York Times reported that, under White House pressure and with an executive order from President George W. Bush, the National Security Agency, in an attempt to thwart terrorism, had been tapping phone calls made to persons outside the country, without obtaining warrants from the United States Foreign Intelligence Surveillance Court, a secret court created for that purpose under the Foreign Intelligence Surveillance Act (FISA).

One such surveillance program, authorized by the U.S. Signals Intelligence Directive 18 of President George Bush, was the Highlander Project undertaken for the National Security Agency by the U.S. Army 513th Military Intelligence Brigade. NSA relayed telephone (including cell phone) conversations obtained from ground, airborne, and satellite monitoring stations to various U.S. Army Signal Intelligence Officers, including the 201st Military Intelligence Battalion. Conversations of citizens of the U.S. were intercepted, along with those of other nations.

Proponents of the surveillance program claim that the President has executive authority to order such action, arguing that laws such as FISA are overridden by the President's Constitutional powers. In addition, some argued that FISA was implicitly overridden by a subsequent statute, the Authorization for Use of Military Force, although the Supreme Court's ruling in Hamdan v. Rumsfeld deprecates this view. In the August 2006 case ACLU v. NSA, U.S. District Court Judge Anna Diggs Taylor concluded that NSA's warrantless surveillance program was both illegal and unconstitutional. On July 6, 2007, the 6th Circuit Court of Appeals vacated the decision on the grounds that the ACLU lacked standing to bring the suit.

On January 17, 2006, the Center for Constitutional Rights filed a lawsuit, CCR v. Bush, against the George W. Bush Presidency. The lawsuit challenged the National Security Agency's (NSA's) surveillance of people within the U.S., including the interception of CCR emails without securing a warrant first.

In September 2008, the Electronic Frontier Foundation (EFF) filed a class action lawsuit against the NSA and several high-ranking officials of the Bush administration, charging an "illegal and unconstitutional program of dragnet communications surveillance," based on documentation provided by former AT&T technician Mark Klein.

As a result of the USA Freedom Act passed by Congress in June 2015, the NSA had to shut down its bulk phone surveillance program on November 29 of the same year. The USA Freedom Act forbids the NSA to collect metadata and content of phone calls unless it has a warrant for terrorism investigation. In that case, the agency must ask the telecom companies for the record, which will only be kept for six months. The NSA's use of large telecom companies to assist it with its surveillance efforts has caused several privacy concerns.

AT&T Internet monitoring

In May 2008, Mark Klein, a former AT&T employee, alleged that his company had cooperated with NSA in installing Narus hardware to replace the FBI Carnivore program, to monitor network communications including traffic between U.S. citizens.

Data mining

NSA was reported in 2008 to use its computing capability to analyze "transactional" data that it regularly acquires from other government agencies, which gather it under their own jurisdictional authorities. As part of this effort, NSA now monitors huge volumes of records of domestic email data, web addresses from Internet searches, bank transfers, credit-card transactions, travel records, and telephone data, according to current and former intelligence officials interviewed by The Wall Street Journal. The sender, recipient, and subject line of emails can be included, but the content of the messages or of phone calls are not.

A 2013 advisory group for the Obama administration, seeking to reform NSA spying programs following the revelations of documents released by Edward J. Snowden. mentioned in 'Recommendation 30' on page 37, "...that the National Security Council staff should manage an interagency process to review on a regular basis the activities of the US Government regarding attacks that exploit a previously unknown vulnerability in a computer application." Retired cybersecurity expert Richard A. Clarke was a group member and stated on April 11, 2014, that NSA had no advance knowledge of Heartbleed.

Illegally obtained evidence

In August 2013 it was revealed that a 2005 IRS training document showed that NSA intelligence intercepts and wiretaps, both foreign and domestic, were being supplied to the Drug Enforcement Administration (DEA) and Internal Revenue Service (IRS) and were illegally used to launch criminal investigations of US citizens. Law enforcement agents were directed to conceal how the investigations began and recreate an apparently legal investigative trail by re-obtaining the same evidence by other means.

Barack Obama administration

In the months leading to April 2009, the NSA intercepted the communications of U.S. citizens, including a Congressman, although the Justice Department believed that the interception was unintentional. The Justice Department then took action to correct the issues and bring the program into compliance with existing laws. United States Attorney General Eric Holder resumed the program according to his understanding of the Foreign Intelligence Surveillance Act amendment of 2008, without explaining what had occurred.

Polls conducted in June 2013 found divided results among Americans regarding NSA's secret data collection. Rasmussen Reports found that 59% of Americans disapprove, Gallup found that 53% disapprove, and Pew found that 56% are in favor of NSA data collection.

Section 215 metadata collection

On April 25, 2013, the NSA obtained a court order requiring Verizon's Business Network Services to provide metadata on all calls in its system to the NSA "on an ongoing daily basis" for a three-month period, as reported by The Guardian on June 6, 2013. This information includes "the numbers of both parties on a call ... location data, call duration, unique identifiers, and the time and duration of all calls" but not "he contents of the conversation itself". The order relies on the so-called "business records" provision of the Patriot Act.

In August 2013, following the Snowden leaks, new details about the NSA's data mining activity were revealed. Reportedly, the majority of emails into or out of the United States are captured at "selected communications links" and automatically analyzed for keywords or other "selectors". Emails that do not match are deleted.

The utility of such a massive metadata collection in preventing terrorist attacks is disputed. Many studies reveal the dragnet like system to be ineffective. One such report, released by the New America Foundation concluded that after an analysis of 225 terrorism cases, the NSA "had no discernible impact on preventing acts of terrorism."

Defenders of the program said that while metadata alone cannot provide all the information necessary to prevent an attack, it assures the ability to "connect the dots" between suspect foreign numbers and domestic numbers with a speed only the NSA's software is capable of. One benefit of this is quickly being able to determine the difference between suspicious activity and real threats. As an example, NSA director General Keith B. Alexander mentioned at the annual Cybersecurity Summit in 2013, that metadata analysis of domestic phone call records after the Boston Marathon bombing helped determine that rumors of a follow-up attack in New York were baseless.

In addition to doubts about its effectiveness, many people argue that the collection of metadata is an unconstitutional invasion of privacy. As of 2015, the collection process remains legal and grounded in the ruling from Smith v. Maryland (1979). A prominent opponent of the data collection and its legality is U.S. District Judge Richard J. Leon, who issued a report in 2013 in which he stated: "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval...Surely, such a program infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment".

As of May 7, 2015, the United States Court of Appeals for the Second Circuit ruled that the interpretation of Section 215 of the Patriot Act was wrong and that the NSA program that has been collecting Americans' phone records in bulk is illegal. It stated that Section 215 cannot be clearly interpreted to allow government to collect national phone data and, as a result, expired on June 1, 2015. This ruling "is the first time a higher-level court in the regular judicial system has reviewed the N.S.A. phone records program." The replacement law known as the USA Freedom Act, which will enable the NSA to continue to have bulk access to citizens' metadata but with the stipulation that the data will now be stored by the companies themselves. This change will not have any effect on other Agency procedures – outside of metadata collection – which have purportedly challenged Americans' Fourth Amendment rights;, including Upstream collection, a mass of techniques used by the Agency to collect and store American's data/communications directly from the Internet backbone.

Under the Upstream collection program, the NSA paid telecommunications companies hundreds of millions of dollars in order to collect data from them. While companies such as Google and Yahoo! claim that they do not provide "direct access" from their servers to the NSA unless under a court order, the NSA had access to emails, phone calls and cellular data users. Under this new ruling, telecommunications companies maintain bulk user metadata on their servers for at least 18 months, to be provided upon request to the NSA. This ruling made the mass storage of specific phone records at NSA datacenters illegal, but it did not rule on Section 215's constitutionality.

Fourth Amendment encroachment

In a declassified document it was revealed that 17,835 phone lines were on an improperly permitted "alert list" from 2006 to 2009 in breach of compliance, which tagged these phone lines for daily monitoring. Eleven percent of these monitored phone lines met the agency's legal standard for "reasonably articulable suspicion" (RAS).

The NSA tracks the locations of hundreds of millions of cellphones per day, allowing it to map people's movements and relationships in detail. The NSA has been reported to have access to all communications made via Google, Microsoft, Facebook, Yahoo, YouTube, AOL, Skype, Apple and Paltalk, and collects hundreds of millions of contact lists from personal email and instant messaging accounts each year. It has also managed to weaken much of the encryption used on the Internet (by collaborating with, coercing or otherwise infiltrating numerous technology companies to leave "backdoors" into their systems), so that the majority of encryption is inadvertently vulnerable to different forms of attack.

Domestically, the NSA has been proven to collect and store metadata records of phone calls, including over 120 million US Verizon subscribers, as well as intercept vast amounts of communications via the internet (Upstream). The government's legal standing had been to rely on a secret interpretation of the Patriot Act whereby the entirety of US communications may be considered "relevant" to a terrorism investigation if it is expected that even a tiny minority may relate to terrorism. The NSA also supplies foreign intercepts to the DEA, IRS and other law enforcement agencies, who use these to initiate criminal investigations. Federal agents are then instructed to "recreate" the investigative trail via parallel construction.

The NSA also spies on influential Muslims to obtain information that could be used to discredit them, such as their use of pornography. The targets, both domestic and abroad, are not suspected of any crime but hold religious or political views deemed "radical" by the NSA.

According to a report in The Washington Post in July 2014, relying on information provided by Snowden, 90% of those placed under surveillance in the U.S. are ordinary Americans and are not the intended targets. The newspaper said it had examined documents including emails, text messages, and online accounts that support the claim.

Congressional oversight

Despite White House claims that these programs have congressional oversight, many members of Congress were unaware of the existence of these NSA programs or the secret interpretation of the Patriot Act, and have consistently been denied access to basic information about them. The United States Foreign Intelligence Surveillance Court, the secret court charged with regulating the NSA's activities is, according to its chief judge, incapable of investigating or verifying how often the NSA breaks even its own secret rules. It has since been reported that the NSA violated its own rules on data access thousands of times a year, many of these violations involving large-scale data interceptions. NSA officers have even used data intercepts to spy on love interests; "most of the NSA violations were self-reported, and each instance resulted in administrative action of termination."

The NSA has "generally disregarded the special rules for disseminating United States person information" by illegally sharing its intercepts with other law enforcement agencies. A March 2009 FISA Court opinion, which the court released, states that protocols restricting data queries had been "so frequently and systemically violated that it can be fairly said that this critical element of the overall ... regime has never functioned effectively." In 2011 the same court noted that the "volume and nature" of the NSA's bulk foreign Internet intercepts was "fundamentally different from what the court had been led to believe". Email contact lists (including those of US citizens) are collected at numerous foreign locations to work around the illegality of doing so on US soil.

Legal opinions on the NSA's bulk collection program have differed. In mid-December 2013, U.S. District Judge Richard Leon ruled that the "almost-Orwellian" program likely violates the Constitution, and wrote, "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast."

Later that month, U.S. District Judge William Pauley ruled that the NSA's collection of telephone records is legal and valuable in the fight against terrorism. In his opinion, he wrote, "a bulk telephony metadata collection program a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data" and noted that a similar collection of data prior to 9/11 might have prevented the attack.

Official responses

At a March 2013 Senate Intelligence Committee hearing, Senator Ron Wyden asked Director of National Intelligence James Clapper, "does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Clapper replied "No, sir. ... Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly." This statement came under scrutiny months later, in June 2013, details of the PRISM surveillance program were published, showing that "the NSA apparently can gain access to the servers of nine Internet companies for a wide range of digital data." Wyden said that Clapper had failed to give a "straight answer" in his testimony. Clapper, in response to criticism, said, "I responded in what I thought was the most truthful, or least untruthful manner." Clapper added, "There are honest differences on the semantics of what -- when someone says 'collection' to me, that has a specific meaning, which may have a different meaning to him."

NSA whistle-blower Edward Snowden additionally revealed the existence of XKeyscore, a top secret NSA program that allows the agency to search vast databases of "the metadata as well as the content of emails and other internet activity, such as browser history," with capability to search by "name, telephone number, IP address, keywords, the language in which the internet activity was conducted or the type of browser used." XKeyscore "provides the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant provided that some identifying information, such as their email or IP address, is known to the analyst."

Regarding the necessity of these NSA programs, Alexander stated on June 27, 2013, that the NSA's bulk phone and Internet intercepts had been instrumental in preventing 54 terrorist "events", including 13 in the US, and in all but one of these cases had provided the initial tip to "unravel the threat stream". On July 31 NSA Deputy Director John Inglis conceded to the Senate that these intercepts had not been vital in stopping any terrorist attacks, but were "close" to vital in identifying and convicting four San Diego men for sending US$8,930 to Al-Shabaab, a militia that conducts terrorism in Somalia.

The U.S. government has aggressively sought to dismiss and challenge Fourth Amendment cases raised against it, and has granted retroactive immunity to ISPs and telecoms participating in domestic surveillance.

The U.S. military has acknowledged blocking access to parts of The Guardian website for thousands of defense personnel across the country, and blocking the entire Guardian website for personnel stationed throughout Afghanistan, the Middle East, and South Asia.

An October 2014 United Nations report condemned mass surveillance by the United States and other countries as violating multiple international treaties and conventions that guarantee core privacy rights.

Responsibility for international ransomware attack

An exploit dubbed EternalBlue, which was claimed to have been created by the NSA by hacker group The Shadow Brokers and whistleblower Edward Snowden, was used in the unprecedented worldwide WannaCry ransomware attack in May 2017. The exploit had been leaked online by a hacking group, The Shadow Brokers, nearly a month prior to the attack. A number of experts have pointed the finger at the NSA's non-disclosure of the underlying vulnerability, and their loss of control over the EternalBlue attack tool that exploited it. Edward Snowden said that if the NSA had "privately disclosed the flaw used to attack hospitals when they found it, not when they lost it, might not have happened". Misplaced Pages co-founder, Jimmy Wales, stated that he joined "with Microsoft and the other leaders of the industry in saying this is a huge screw-up by the government ... the moment the NSA found it, they should have notified Microsoft so they could quietly issue a patch and really chivvy people along, long before it became a huge problem."

2015 Michelle Obama email hack

Former employee David Evenden, who had left the NSA to work for US defense contractor Cyperpoint at a position in the United Arab Emirates, was tasked with hacking UAE neighbor Qatar in 2015 to determine if they were funding terrorist group Muslim Brotherhood. He quit the company after learning his team had hacked Qatari Sheikha Moza bint Nasser's email exchanges with Michelle Obama, just prior to her visit to Doha. Upon Everden's return to the US, he reported his experiences to the FBI. The incident highlights a growing trend of former NSA employees and contractors leaving the agency to start up their own firms, and then hiring out to countries like Turkey, Sudan and even Russia, a country involved in numerous cyberattacks against the US.

Loujain al-Hathloul Hacking

In a 9 December 2021 lawsuit, Saudi women’s rights activist Loujain al-Hathloul sued three US intelligence and military officials – Marc Baier, Daniel Gericke and Ryan Adams – for hacking her. Baier formerly worker with the NSA. The lawsuit was filed on behalf of Loujain by the Electronic Frontier Foundation, a non-profit organization in the US federal court. Loujain served 1001 days in jail to end a ban on women driving in Saudi Arabia after being hacked for the Saudi government under a project codenamed “Purple Sword” overseen by DarkMatter, an Abu Dhabi-based cybersecurity firm accused in the past for conducting mass surveillance.

2021 Denmark-NSA collaborative surveillance scandal

In May 2021, it was reported that Danish Defence Intelligence Service collaborated with NSA to wiretap on fellow EU members and leaders, leading to wide backlash among EU countries and demands for explanation from Danish and American governments.

See also

• List of CIA controversies
• List of FBI controversies
• United States Intelligence Community

External links

• United National Security Agency Office of the Inspector General

References

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