The U.S. government began collecting email metadata long before a secret intelligence court ever gave the spy program its blessing, according to recently declassified documents from the federal government.
Based entirely on the legal authority of then-President George W. Bush, the National Security Agency was permitted to run an Internet surveillance program—parallel to a separate telephone metadata gathering program—that gathered large amounts of email data in the U.S. following 9/11. The NSA was allowed to engage in these activities even before a Foreign Intelligence Surveillance Act (FISA) court, the closed-door courts that are supposed to imbue secret intelligence gather programs with a sense of due process, ruled in favor of their existence.
Though this had long been suspected, it was confirmed Monday when the Justice Department publically released a 2007 court filing written by an unnamed senior NSA official. The heavily-redacted document was originally filed as part of the Bush administration's defense against litigation challenging government wiretapping programs.
The crucial part of the document reads:
"After the 9/11 attacks and pursuant to an authorization of the President, [redacted] the NSA [redacted] the bulk collection of non-content information about telephone calls and Internet communications (hereafter 'metadata') activities that enable the NSA to uncover the contacts [redacted] of members or agents of al Qaeda or affiliated terrorist organizations.
Specifically, the President authorized the the NSA to collect metadata related to Internet communications for the purpose of conducting targeted analysis to track Al Qaeda-related networks. Internet metadata is header/router/addressing information, such as the 'to,' 'from,' 'cc,' and 'bcc' lines, as opposed to the body or 're' lines, of a standard e-mail. Since July 2004, the collection of Internet metadata has been conducted pursuant to an Order of the Foreign Intelligence Surveillance Court."
As Politico's Josh Gerstein points out, this confirms that the government was operating email surveillance programs prior to FISA Judge Colleen Kollar-Kotelly's ruling in 2004. That ruling was released last November, but with the specific date of the ruling redacted.
As Gerstein writes: "Many surmised that [Kollar-Kotelly's] opinion followed a dust-up in March 2004, when then-Deputy Attorney General James Comey questioned the legality of some aspect of Bush's post-9/11 surveillance programs and refused to reauthorize that portion of the surveillance."
That refusal, by Comey, is said to have put the data gathering program in turmoil for several months until a favorable FISA court ruling confirmed its legality.
News of this memo's release largely flew under the radar Monday, as the email data gathering program has essentially been public for more than nine months now, ever since the leaks by former NSA contractor Edward Snowden were first publicized last June.
Suspicion swirled even before Snowden. As Gerstein point's out, the New York Times's report that first brought government wiretapping to the American people's attention back in 2005 alluded to the possibility of intelligence officials spying on email. However, when Bush acknowledge the surveillance programs a year later, he was short on details and made no mention of email surveillance.